We’ve Got Answers: Your Questions About Mediation Part Five
Q: Are parties to community association disputes required to mediate their claims before suit can be filed?
A: Most disputes between community associations – in other words, between condominium and homeowners’ associations and their members or other residents – are subject to what is known as mandatory statutory presuit mediation. The disputes which need to go to mediation before filing suit are defined in Sections 718.1255 (for condominiums) and 720.311 (for HOAs) of the Florida Statutes. They typically involve violations of the association’s deed restrictions or other governing documents.
While condominium disputes and HOA disputes are now subject to nearly the same presuit mediation rules, for many years, disputes arising in the condominium context, were subject to non-binding arbitration before suit could be brought. Later, the legislature decided to require presuit mediation in similar disputes arising in the HOA context. Now, while non-binding arbitration is still available for condominium disputes, the parties to condominium disputes also have the presuit mediation option. This gives the parties the opportunity to resolve the dispute before suit needs to be filed.
What happens if suit is filed without the presuit mediation requirement being met? First, it’s important to understand that in nearly all of these community association disputes the prevailing party is entitled to an award of its reasonable attorneys’ fees at the end of the case. The right to a fees award is provided in the applicable state statutes and typically in the governing documents of the condominium or HOA. However, the statutes provide that parties who do not comply with the presuit mediation requirements and procedures will lose their right to obtain an award of their fees, even if they prevail in the lawsuit.
And what are the procedures? The statutes provide that the party who wants to file suit must send a letter to the opposing party laying out the facts of the dispute, generally explaining the presuit mediation process, providing the names of proposed mediators, and including an agreement to mediate to be signed by the opposing party. A form of the letter is set forth in the statutes.
The opposing party must respond to the letter within 20 days, identifying an acceptable mediator, and signing off on the mediation agreement.
If the plaintiff files suit without first sending the letter, it will be unable to seek attorneys’ fees, even if it prevails. Similarly, if the defendant fails to timely respond to the letter, or to agree to a mediator, or otherwise fails to take part in the proceedings, then it will be unable to seek attorneys’ fees.
Gary Schaaf has been a Florida Supreme Court Certified Circuit Court Mediator since 1995. He can be reached for scheduling at gschaaf@beckerlawyers.com or by phone at (813) 527-3912, and you can read more about his background here.
