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FIGHTING IN YOUR HOA? DON’T WAIT! MEDIATE!
By
Eric Glazer, Esq.
Published October 1, 2018
The HOA statute does do one thing right. It requires the
parties to a dispute to submit that dispute to an arbitrator
before going to court. Florida Statute 718.311 states:
(2)(a) Disputes between an association and a parcel owner
regarding use of or changes to the parcel or the common areas
and other covenant enforcement disputes, disputes regarding
amendments to the association documents, disputes regarding
meetings of the board and committees appointed by the board,
membership meetings not including election meetings, and access
to the official records of the association shall be the subject
of a demand for presuit mediation served by an aggrieved party
before the dispute is filed in court….Disputes subject to
presuit mediation under this section shall not include the
collection of any assessment, fine, or other financial
obligation, including attorney’s fees and costs, claimed to be
due or any action to enforce a prior mediation settlement
agreement between the parties. Also, in any dispute subject to
presuit mediation under this section where emergency relief is
required, a motion for temporary injunctive relief may be filed
with the court without first complying with the presuit
mediation requirements of this section. After any issues
regarding emergency or temporary relief are resolved, the court
may either refer the parties to a mediation program administered
by the courts or require mediation under this section….
An aggrieved party shall serve on the responding party a written
demand to participate in presuit mediation in substantially the
following form:
STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION
The alleged aggrieved party, , hereby demands that , as
the responding party, engage in mandatory presuit mediation in
connection with the following disputes, which by statute are of
a type that are subject to presuit mediation:
(List specific nature of the dispute or disputes to be mediated
and the authority supporting a finding of a violation as to each
dispute.)
Pursuant to section 720.311, Florida Statutes, this demand to
resolve the dispute through presuit mediation is required before
a lawsuit can be filed concerning the dispute. Pursuant to the
statute, the parties are required to engage in presuit mediation
with a neutral third-party mediator in order to attempt to
resolve this dispute without court action, and the aggrieved
party demands that you likewise agree to this process. If you
fail to participate in the mediation process, suit may be
brought against you without further warning.
The process of mediation involves a supervised negotiation
process in which a trained, neutral third-party mediator meets
with both parties and assists them in exploring possible
opportunities for resolving part or all of the dispute. By
agreeing to participate in presuit mediation, you are not bound
in any way to change your position. Furthermore, the mediator
has no authority to make any decisions in this matter or to
determine who is right or wrong and merely acts as a facilitator
to ensure that each party understands the position of the other
party and that all options for reasonable settlement are fully
explored.
If an agreement is reached, it shall be reduced to writing and
becomes a binding and enforceable commitment of the parties. A
resolution of one or more disputes in this fashion avoids the
need to litigate these issues in court. The failure to reach an
agreement, or the failure of a party to participate in the
process, results in the mediator declaring an impasse in the
mediation, after which the aggrieved party may proceed to court
on all outstanding, unsettled disputes. If you have failed or
refused to participate in the entire mediation process, you will
not be entitled to recover attorney’s fees, even if you prevail.
The aggrieved party has selected and hereby lists five certified
mediators who we believe to be neutral and qualified to mediate
the dispute. You have the right to select any one of these
mediators. The fact that one party may be familiar with one or
more of the listed mediators does not mean that the mediator
cannot act as a neutral and impartial facilitator. Any mediator
who cannot act in this capacity is required ethically to decline
to accept engagement. The mediators that we suggest, and their
current hourly rates, are as follows:
(List the names, addresses, telephone numbers, and hourly rates
of the mediators. Other pertinent information about the
background of the mediators may be included as an attachment.)
You may contact the offices of these mediators to confirm that
the listed mediators will be neutral and will not show any
favoritism toward either party. The Florida Supreme Court can
provide you a list of certified mediators.
Unless otherwise agreed by the parties, section 720.311(2)(b),
Florida Statutes, requires that the parties share the costs of
presuit mediation equally, including the fee charged by the
mediator. An average mediation may require three to four hours
of the mediator’s time, including some preparation time, and the
parties would need to share equally the mediator’s fees as well
as their own attorney’s fees if they choose to employ an
attorney in connection with the mediation. However, use of an
attorney is not required and is at the option of each party. The
mediators may require the advance payment of some or all of the
anticipated fees. The aggrieved party hereby agrees to pay or
prepay one-half of the mediator’s estimated fees and to forward
this amount or such other reasonable advance deposits as the
mediator requires for this purpose. Any funds deposited will be
returned to you if these are in excess of your share of the fees
incurred.
To begin your participation in presuit mediation to try to
resolve the dispute and avoid further legal action, please sign
below and clearly indicate which mediator is acceptable to you.
We will then ask the mediator to schedule a mutually convenient
time and place for the mediation conference to be held. The
mediation conference must be held within ninety (90) days of
this date, unless extended by mutual written agreement. In the
event that you fail to respond within 20 days from the date of
this letter, or if you fail to agree to at least one of the
mediators that we have suggested or to pay or prepay to the
mediator one-half of the costs involved, the aggrieved party
will be authorized to proceed with the filing of a lawsuit
against you without further notice and may seek an award of
attorney’s fees or costs incurred in attempting to obtain
mediation.
Therefore, please give this matter your immediate attention. By
law, your response must be mailed by certified mail, return
receipt requested, and by first-class mail to the address shown
on this demand.
RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO
THAT CHOICE.
AGREEMENT TO MEDIATE
The undersigned hereby agrees to participate in presuit
mediation and agrees to attend a mediation conducted by the
following mediator or mediators who are listed above as someone
who would be acceptable to mediate this dispute:
(List acceptable mediator or mediators.)
I/we further agree to pay or prepay one-half of the mediator’s
fees and to forward such advance deposits as the mediator may
require for this purpose.
Signature of responding party #1
Telephone contact information
Signature and telephone contact information of responding party
#2 (if applicable)(if property is owned by more than one person,
all owners must sign)
(b) Service of the statutory demand to participate in presuit
mediation shall be effected by sending a letter in substantial
conformity with the above form by certified mail, return receipt
requested, with an additional copy being sent by regular
first-class mail, to the address of the responding party as it
last appears on the books and records of the association. The
responding party has 20 days from the date of the mailing of the
statutory demand to serve a response to the aggrieved party in
writing. The response shall be served by certified mail, return
receipt requested, with an additional copy being sent by regular
first-class mail, to the address shown on the statutory demand.
Notwithstanding the foregoing, once the parties have agreed on a
mediator, the mediator may reschedule the mediation for a date
and time mutually convenient to the parties. The parties shall
share the costs of presuit mediation equally, including the fee
charged by the mediator, if any, unless the parties agree
otherwise, and the mediator may require advance payment of its
reasonable fees and costs. The failure of any party to respond
to a demand or response, to agree upon a mediator, to make
payment of fees and costs within the time established by the
mediator, or to appear for a scheduled mediation session without
the approval of the mediator, shall constitute the failure or
refusal to participate in the mediation process and shall
operate as an impasse in the presuit mediation by such party,
entitling the other party to proceed in court and to seek an
award of the costs and fees associated with the mediation.
Additionally, notwithstanding the provisions of any other law or
document, persons who fail or refuse to participate in the
entire mediation process may not recover attorney’s fees and
costs in subsequent litigation relating to the dispute. If any
presuit mediation session cannot be scheduled and conducted
within 90 days after the offer to participate in mediation was
filed, an impasse shall be deemed to have occurred unless both
parties agree to extend this deadline.
I love acting in my capacity as a Circuit Court Mediator. I
certainly get pleasure put of helping the parties settle a case
that could have spent years and hundreds of thousands of dollars
in court. It’s about time that The Florida Legislature make
pre-suit mediation of condominium disputes mandatory as well.
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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 attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday 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 10,000
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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