2019 in a Nutshell

Incredibly, for 2019 we’re on pace to break a record in regard to the number of ethics complaints filed and the number of ethics hearings held. Through three quarters (2019), we’re on pace for 123 ethics complaints, which is a very large number.

MEDIATOR & OMBUDSMAN TRAINING

The Mediator and Ombudsman Training held on October 23, 2019 was a great success. Our instructor, Monica Lindstrom – KTAR legal analyst and practicing attorney who focuses on mediation – shared some powerful takeaways when mediating and helping the parties resolve problems. Some of those takeaways are included:

1.Make opening statements short – parties are anxiously waiting to tell their story and may not absorb a long, extended opening statement.
2. Give each person 5 minutes of uninterrupted speaking.
3. Listen for language patterns and try to respond using those same patterns.
4. Listen for adjectives which are clues to each party’s wants.
5. Rephrase what you heard using the party’s adjectives.

HEARING PANELISTS

With the high success rate realized by the Association’s volunteer mediators, Arizona REALTORS® staff encourage parties in ethics complaints to mediate their dispute. While most mediations resolve the dispute in its entirety, some complaints still proceed to a hearing. It is therefore important to remember that settlement discussions and offers of compromise are inadmissible in an ethics hearing.

The introductory script read by the chairperson to the parties at the commencement of an ethics hearing states in part:

No aspect of any discussion or proposed settlement from a mediation conference or otherwise shall be introduced as evidence at this hearing.

Rationale for this policy includes the fact that such evidence is irrelevant since the offer may be motivated by a desire for resolution rather than from any concession of weakness of position. Additionally, the Association favors the compromise and settlement of disputes and parties may be reluctant to extend offers of settlement if doing so can be used against them at a subsequent hearing.

In the event that a party approaches the topic of a prior mediation or offer of settlement, the hearing panel chair should quickly intervene, stop the discussion, and remind the parties that such evidence cannot be introduced. If the statement is made before the speaker can be stopped, the chairperson should inform the parties on the record that settlement offers are not indicative of guilt or innocence and will not be considered by the panel.

MEDIATORS

Ralph Waldo Emerson wrote that “It’s not the destination, it’s the journey.” Although mediation is often focused on the ultimate result, mediators would be wise to remember this famous quotation.

While Arizona REALTORS® volunteer mediators take the time to learn the facts of the case and thoroughly prepare for their mediations, flexibility and an open-mind are vital to success. Either consciously or unconsciously, it is common for mediators to imagine possible outcomes heading in to mediation. When this occurs, mediators tend to develop a plan to direct the parties to the mediator’s contemplated outcome. However, the parties rarely follow the path outlined by the mediator.

When this happens, it’s vital for the mediator not to think, “They’re ruining my mediation! Why can’t they stick to the plan?” First, the mediation belongs to the parties, not the mediator. Second, it’s important not to “over-mediate” a case. Keeping these points in mind, mediators need to remain flexible and be open to the idea that the parties may reach a settlement beyond what the mediator contemplated and the parties may get there via a path the mediator did not anticipate.

If the mediator focuses on the destination, they may “box-in” the parties and not allow the mediation to proceed organically. When this happens, the mediator could unintentionally limit the ultimate outcome only to scenarios that the mediator pre-envisioned. So instead, allow the parties to take their own journey and you may be pleasantly surprised by the outcome.

OMBUDSMEN

Ombudsmen respond to general questions regarding real estate practices, transaction details, ethical practices, and enforcement issues. All of this is done to resolve budding disputes before they evolve into a formal ethics complaint. However, there are two actions in particular that Ombudsmen should avoid.

1. Although Ombudsmen can explain the Code of Ethics to members of the public, and even direct them to where it can be found, Ombudsmen must not opine as to whether an Arizona REALTOR® has violated the Code of Ethics. Determinations of this nature can only be made by a hearing panel and rendering such opinions is beyond the intended scope of the program.

2. It is the hope of Ombudsmen that they are able to assist the parties in reaching an agreement as to how they will move forward. For example, following a call from an Ombudsman, a REALTOR® may promise to take specific action. Although that promise can be relayed to the original caller, it is not the role of Ombudsmen to follow-up to ensure that the REALTOR® performed as agreed. In other words, Ombudsmen should not call either party days later to check and see if the REALTOR® followed-through. Rather, Ombudsmen should inform the original caller that, if the REALTOR® fails to act as promised, the caller should again reach out to Association staff.

SAVE THE DATE

2020 Professional Standards Workshop
Black Canyon Conference Center
Tuesday, February 18, 2020