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In order to fulfill the requirements of FS 720.311 (PRESUIT MEDIATION OFFER) you -- as the aggrieved party -- need to list five certified mediators on the offer.
Here is an advanced search list of eligible mediators. You can search by location, qualification and rates. The list is provided by the The Florida Circuit-Civil Mediator Society.
HERE ARE SOME SUGGESTIONS REGARDING PRESUIT MEDIATION: Mediation only works if both parties are willing to discuss a settlement in good faith. During meetings of the 2004 HOA Task Force -- when the initial mediation requirement was created in FS 720.311 -- all kinds of promises were made that mediation would be a feasible solution at low expense.
Actually, mediation turned out to be a total failure, because boards and their attorneys in many cases didn't come to the table in good faith. In many cases it turned out to be a total waste of money. It doesn't help if the attorney for the association spends valuable time to deliver long speeches -- and certain mediators keep trying to intimidate homeowners with the threat of huge legal fees if they don't settle. The costs are the same -- so save your money for the real thing!
The STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION should be considered by owners as a warning for upcoming litigation. Nothing else! Otherwise, it's plainly a waste of money!
Here is my suggestion how to deal with this issue in order to follow the statutes and avoid the problem created by this provision: "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 statute doesn't tell you what length of time you have to participate. You follow the words of the statutes if you show up, introduce yourself, state your version of a settlement, ask for agreement from the other side: YES or NO will do! In case of a NO, declare the mediation over and leave. Nothing in the statutes requires you to listen to long -- and expensive -- speeches of the association attorney. His clock is ticking -- and so is the clock of the mediator! If you get the presuit mediation offer, pick the mediator closest to you with the lowest hourly rate. Watch -- some charge a minimum of two hours! Save your money for the lawsuit that might follow -- we have seen quite a few examples where association attorneys just used mediation as another intimidation tool. Don't forget, in front of a judge they have to come up with facts -- not just empty threats! Quite a few of these specialized attorneys are just blowing smoke!
Don't forget, if the other side had wanted a feasible agreement, they could have offered it without adding the cost of mediation. Boards still have the option to sit down with a homeowner and find a solution, without creating legal fees. Their willingness to waste more money on legal fees is already proof enough that they don't act in good faith!
If you are the aggrieved party, make the presuit mediation offer by naming five certified mediators as required. Don't bother to use your own attorney to take with you to the mediation session -- it's more wasted money! Consider mediation as a necessary evil, because it just adds money in the pockets of attorneys! Money you could better use for court costs!
Example: Record Request If you followed the rules of FS 720.303(4) + (5) and your association didn't oblige, there is really not much to mediate. You have the right to the $500 penalty and the cost of the procedure. The law is very clear! Mediation is done with a straight YES or NO! No lengthy arguments, no IFs and no BUTs! Use your money for filing fees with your local Small Claims Court -- you get a free mediation there anyway!
If the specialized attorneys wanted it this way -- they were behind this bill -- then let's play their game -- but play it our way! Don't be intimidated -- they have no special rights. They are the hired hand of your board and should realize that their actions should represent the interests of the association members -- not just some board members with a personal agenda! Lengthy and costly mediation is definitely not in the interest of the association and its members! And definitely not in your best interest!
Never forget: You call the shots -- nobody else does!
The most problematic issue of these new provisions is the selection of the mediators. These are the requirements according to the statutes: 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.
In order to help homeowners to fulfill the requirements of FS 720.311, here is an advanced search list provided by the The Florida Circuit-Civil Mediator Society.
Good luck with this PRESUIT MEDIATION -- YOU WILL NEED IT! DISCLAIMER: THESE ARE JUST IDEAS AND SUGGESTIONS HOW TO DEAL WITH THE NEW PRESUIT MEDIATION PROVISIONS OF FS 720. Please check for more detailed information by sending e-mail to: [email protected] |
