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720.311
Dispute resolution.--
(1) The Legislature finds that alternative dispute
resolution has made progress in reducing court dockets and trials and in
offering a more efficient, cost-effective option to litigation. The
filing of any petition for arbitration or the serving of a demand for
presuit mediation as provided for in this section shall toll the
applicable statute of limitations. Any recall dispute filed with the
department under s. 720.303(10) shall be conducted by the department in
accordance with the provisions of ss. 718.112(2)(j) and 718.1255 and the
rules adopted by the division. In addition, the department shall conduct
binding arbitration of election disputes between a member and an
association in accordance with s. 718.1255 and rules adopted by the
division. Election disputes and recall disputes are not eligible for
presuit mediation; these disputes must be arbitrated by the department
or filed in a court of competent jurisdiction. At the conclusion of an
arbitration proceeding, the department shall charge the parties a fee in
an amount adequate to cover all costs and expenses incurred by the
department in conducting the proceeding. Initially, the petitioner shall
remit a filing fee of at least $200 to the department. The fees paid to
the department shall become a recoverable cost in the arbitration
proceeding, and the prevailing party in an arbitration proceeding shall
recover its reasonable costs and attorney fees in an amount found
reasonable by the arbitrator. The department shall adopt rules to
effectuate the purposes of this section.
(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. Presuit mediation proceedings must be
conducted in accordance with the applicable Florida Rules of Civil
Procedure, and these proceedings are privileged and confidential to the
same extent as court-ordered mediation. 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 arbitrator or judge may not consider any
information or evidence arising from the presuit mediation proceeding
except in a proceeding to impose sanctions for failure to attend a
presuit mediation session or to enforce a mediated settlement agreement.
Persons who are not parties to the dispute may not attend the presuit
mediation conference without the consent of all parties, except for
counsel for the parties and a corporate representative designated by the
association. When mediation is attended by a quorum of the board, such
mediation is not a board meeting for purposes of notice and
participation set forth in s. 720.303.
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.)
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:
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.
(c) If presuit mediation as
described in paragraph (a) is not successful in resolving all issues between
the parties, the parties may file the unresolved dispute in a court of
competent jurisdiction or elect to enter into binding or nonbinding
arbitration pursuant to the procedures set forth in s. 718.1255 and rules
adopted by the division, with the arbitration proceeding to be conducted by
a department arbitrator or by a private arbitrator certified by the
department. If all parties do not agree to arbitration proceedings following
an unsuccessful presuit mediation, any party may file the dispute in court.
A final order resulting from nonbinding arbitration is final and enforceable
in the courts if a complaint for trial de novo is not filed in a court of
competent jurisdiction within 30 days after entry of the order. As to any
issue or dispute that is not resolved at presuit mediation, and as to any
issue that is settled at presuit mediation but is thereafter subject to an
action seeking enforcement of the mediation settlement, the prevailing party
in any subsequent arbitration or litigation proceeding shall be entitled to
seek recovery of all costs and attorney’s fees incurred in the presuit
mediation process.
(d) A mediator or arbitrator shall be
authorized to conduct mediation or arbitration under this section only
if he or she has been certified as a circuit court civil mediator or
arbitrator, respectively, pursuant to the requirements established by
the Florida Supreme Court. Settlement agreements resulting from
mediation shall not have precedential value in proceedings involving
parties other than those participating in the mediation to support
either a claim or defense in other disputes.
(e)
The presuit mediation procedures provided by this subsection may be used by
a Florida corporation responsible for the operation of a community in which
the voting members are parcel owners or their representatives, in which
membership in the corporation is not a mandatory condition of parcel
ownership, or which is not authorized to impose an assessment that may
become a lien on the parcel.
History.--s.
61, ch. 95-274; s. 50, ch. 2000-258; s. 23, ch. 2004-345; s. 20, ch.
2004-353; s. 16, ch. 2007-173; ch. 2021-99. Note.--Former s. 617.311. |