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YOU
MAY WANT TO WAIT BEFORE YOU LITIGATE
By
Eric Glazer, Esq.
Published February 2, 2015
Funny how things work sometimes.
Over the past 23 years, I have noticed an interesting
pattern in
Florida
community associations. When
money is tight and foreclosures are soaring, associations are
far less likely to engage in litigation.
Suddenly, nobody really cares what color someone painted
their house or whether or not they have a pick-up truck in their
driveway.
The reverse of that is true as well.
When foreclosures are low, suddenly there are apparently
more violations than ever, none of which will be tolerated and
it’s off to the courthouse for everyone.
That seems to be what is happening now, as the
foreclosure crisis draws to a close.
Litigation is picking up.
Over the years,
Florida
association law has changed by removing certain types of cases
from the courts that involve community associations.
There is a difference however in how condominiums and
homeowner associations addressed this issue.
Most disputes in condominiums must start off in
arbitration rather than court.
A petition is filed with the Department of Business and
Professional Regulation and the case is assigned to an
arbitrator. These
types of cases generally include election and recall disputes,
material alterations to the common areas, failure to properly
notice meetings and failure to provide access to records.
The idea behind the arbitration statute was simply to
keep cases out of a real courtroom.
Arbitrators can even assign your case to a mediator who
will meet with the parties and attempt to get the matter
resolved. Here is
the problem though with the current statute.
If the arbitrator refers the case to the mediator, and
the mediator fails to achieve a settlement, either party may
refuse to continue with arbitration and then either party may
pursue their case in a court of law.
The statute makes no sense.
Just like in court, if the mediator fails to achieve a
settlement, the case should go back to the decision maker, the
arbitrator, for a final resolution.
Why spend money arbitrating, only to be forced into a
courtroom if the mediation doesn’t work out where the money is
now really about to fly? The
arbitrator should simply make a ruling.
I just drafted proposed legislation that hopefully will
fix this mess and require the arbitrator to finish the case if
the mediator does not achieve a settlement.
It will put an end to
either party deliberately not settling at mediation, knowing
that by doing so they force the other party to litigate in court
if they want to protect their rights, but that it’s highly
unlikely that they will choose that route because they can’t
afford it and will simply have to drop the case.
When the bill is actually filed, I will encourage all of
you to voice strong support for it.
About 7 years ago, I had the honor of being appointed as
a Circuit Court Mediator by The Florida Supreme Court.
For those of you who don’t know what mediation is,
here’s a brief primer. A
mediator sits at the head of a conference table and asks the
parties and the lawyers to discuss the merits of their case.
He or she tells them that it’s best to resolve the case
today on terms that they can each live with, although neither
party will certainly get everything they want.
The proceedings are completely confidential.
When I act as a mediator, I always tell the parties that
if both sides walk out feeling a little miserable, I probably
did a good job that day. If
the parties don’t settle at mediation, they are made aware
that litigation is often grueling, nerve racking, never-ending,
tiresome, costly, aggravating and most importantly,
unpredictable. The
truth is…..despite every attorney thinking their case is
excellent, they are wrong half the time.
And, even when you win, it’s unlikely you will recover
everything you thought you deserved.
HOA members are lucky.
Florida
law requires disputes in an HOA to be mediated before going to a
courtroom. A good
mediator should be able to settle these fights between an
association and an owner in an overwhelming majority of cases.
Mediation works and is a wonderful idea.
I write this blog today after settling a case last week
that I worked on for longer than a decade.
The terms of the settlement are confidential.
The case settled at a mediation conference.
Throughout the years, there have been countless court
hearings, depositions, client meetings, thousands of pages of
documents drafted and court decisions that both parties
weren’t always thrilled with.
Never mind the expense and aggravation and time along the
way. Mediation
finally put an end to all of that.
Of course not every case can be settled, but statistics
show that about 99% of all cases are ultimately settled without
going to trial. I’m
all in favor of trying to accomplish same early in the process,
like the HOA statute tries to do.
If you’re looking for complete justice in a courtroom,
I’m telling you that far more often than not, you are going to
be disappointed.
Have any of you been wrapped up in a never ending legal
nightmare? How did
it turn out? Would
you do it all over again? Did
you mediate? Did
that result in a settlement?
How about some stories, suggestions and opinions?
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About
HOA & Condo Blog
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Eric
Glazer graduated from the University of Miami School of
Law in 1992 after receiving a B.A. from NYU. He has
practiced community
association
law for more than 2
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decades
and is the owner of Glazer and Associates, P.A. a seven eight
attorney law firm with offices in Fort Lauderdale, Orlando and
Naples.
The
firm also has satellite offices in Tampa and Fort Myers.
Since 2009, Eric has been the host of Condo Craze and
HOAs, a weekly one hour radio show on 850 WFTL.
See:
www.condocrazeandhoas.com.
He
is the first attorney in the State of Florida that designed a
course that certifies condominium residents as eligible to serve
on a condominium Board of Directors and has now certified more
than 8,000 Floridians all across the state. He is certified as a
Circuit Court Mediator by The Florida Supreme Court and has
mediated dozens of disputes between associations and unit
owners. Eric also devotes significant time to advancing
legislation in the best interest of Florida community
association members.
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