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MEDIATION
– IT’S ALL ABOUT GOOD FAITH
By
Jan Bergemann
Published
February 6, 2015
We
hear a lot about mediation – some good, some bad. Over the
years – listening to all the mediation stories – I have come
to the conclusion that it’s all about good faith.
If
both parties don’t approach mediation in good faith -- it’s
just a waste of time and money.
In
his blog Eric quoted very optimistic success rates, but I doubt
that’s specifically true for HOA mediation – also known as
presuit mediation (FS
720.311).
I
hear lots of stories from homeowners who wasted time and money
on mediation, hoping to solve a pressing problem amicably, only
to find out that the board and their association attorney were
just playing for time to make it real costly for the homeowner.
Mediation
may be very helpful in complicated cases – like the one Eric
was just able to settle in mediation. But a majority of court
cases in HOA disputes are very simple and are most often clear
because of provisions in the Florida statutes.
Let’s
talk about record requests – one of the most common disputes.
There is really nothing to mediate if the owner served the board
with the record request as required by the statutes. What’s
there to mediate? The only reason for the owner to show up –
or demand – for presuit mediation is the provision in FS
720.311 that punishes parties for not participating in presuit
mediation with the loss of ability to collect legal fees, even
if that party is the prevailing party in a lawsuit following the
lack of presuit mediation.
My
advice to owners dealing with such an issue: Show up, state your
name and your demand and have the mediator declare the mediation
moot within the first hour. Save your money for the lawsuit that
follows instead of listening to all kinds of legal mumbo-jumbo
from the association attorney who is only interested in
increasing his billing hours.
When
selecting the mediator you should always watch for “minimum
hours.” Some require minimum hours, meaning you have to pay
even if the mediation is declared moot after a short discussion.
Mediation
may be a great solution in many cases, but in many other cases
it can be just a waste of time and money!
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Jan Bergemann is president of Cyber Citizens For Justice,
Florida
's largest state-wide property owners' advocacy group.
CCFJ works on legislation to help owners living in
community
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associations. He moved to
Florida
in 1995 - hoping to retire. He moved into a HOA, where the
developer cheated the homeowners and used the association dues
for his own purposes. End of retirement!
CCFJ was born in the year 2000, when some owners met in
Tallahassee
- finding out that power is only in numbers. Bergemann was a
member of Governor Jeb Bush's HOA Task force in 2003/2004.
The organization has two websites to inform interested
Florida
homeowners and condo owners:
News Website: http://www.ccfj.net/.
Educational Website: http://www.ccfjfoundation.net/.
We think that only owners can really represent owners, since all
service providers surely have a different interest! We are
trying to create owner-friendly laws, but the best laws are
useless without enforcement. And enforcement is totally lacking
in
Florida
!
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