HOA Presuit Mediation in FLA

Yesterday, I had the pleasure of negotiating a resolution to a beachfront homeowner's association (HOA) dispute in presuit mediation. Because this process is statutory, I thought it a good idea to remind everyone of the contents of Section 720.311, Florida Statutes. A mediator is authorized to conduct mediation or arbitration under this section only if he or she has been certified as a circuit court civil mediator by the Florida Supreme Court. The Florida Legislature, finding that alternative dispute resolution reduces court dockets and trials and offers a more efficient, cost-effective option to litigation, created this mechanism for HOAs. Importantly, the filing of any petition or the serving of a demand for presuit mediation as provided for in this section tolls the applicable statute of limitations. Note that neither election disputes nor recall disputes are eligible for presuit mediation, as those are arbitrated under another process. 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 are subject to a 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 under Chapter 44, Florida Statutes. Disputes subject to presuit mediation under Chapter 720 do 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, a 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. The statute also provides approved forms for use in the demand and response. See complete statutory language here-- https://bit.ly/2FXkhj1

FL Senate Mediation Authority Bill

A new bill for the 2018 Florida legislative session has been introduced requiring that insurance carrier representatives who attend circuit court mediations have specified settlement authority and the ability to immediately consult by specified means with persons having certain additional settlement authority and to be available by telephone. Senate Bill SB 1034 would create Section 44.407, Florida Statutes, which would allow sanctions for insurance carriers that fail to comply with good faith requirements of mediation (a term never truly defined). Additionally, Section 44.408 would compel certain third parties to attend mediation upon the request of the mediator or be available to teleconference, though not required to pay any mediation fees by participating. Also, Section 44.409 would limit information that may be included in the mediator’s report to the court. The new law would allow only the following reporting: (a) A complete agreement was reached (b) A partial agreement was reached (c) No agreement was reached. If a partial agreement was reached which eliminates claims or parties from the litigation, a list of such claims and parties may be provided, but no additional information may be disclosed. If passed, and signed by the governor, this act would take effect July 1, 2018. The Executive Council of The Florida Bar Alternative Dispute Resolution Section on which I serve is looking at this legislative development and will take up the issue at its January, 2018 meeting in Orlando. See proposed language filed here-- http://bit.ly/2zgh9hN and ADR Section info at www.FlaAdr.org

Ten Years Later: Florida Mediation Privilege

Success of mediation surely rests with confidentiality, allowing parties to share information, solve issues, build trust, and self-determine whether to resolve a dispute-- all without fear of subsequent disclosure of candid statements shared during the conference. A decade ago, Florida amended Chapter 44, Florida Statutes to create the Mediation Confidentiality and Privilege Act, § 44.401 et seq. Prior to 2004, it was unclear to what extent any privilege applied and when it could be asserted. Under the Act, all mediations, including both court-ordered and other types (like pre-suit and voluntary) were granted confidentiality protections. This made all mediation communications confidential and applies to all mediation participants. The use of mediation has grown significantly in Florida since these protections were codified. The assurance of confidentiality continues to be essential to the integrity and success of mediation. It still encourages candor between the parties and on the part of the mediator. In order for cases to have a chance of settling, the parties must have faith in the fundamental elements of neutrality and confidentiality with limited exceptions to the privilege outlined here-- http://www.flsenate.gov/Laws/Statutes/2014/44.405