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 pursuant
to 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 mandatory binding arbitration of election disputes
between a member and an association pursuant to s. 718.1255
and rules adopted by the division. Neither election disputes nor
recall disputes are eligible for presuit mediation; these
disputes shall be arbitrated by the department. At the conclusion
of the 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's 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 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: 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. |