Mandatory Mediation in Condominium Disputes

Mandatory Mediation in Condominium Disputes

By Michael Chapnick, Community Association Law - Principal

Today, I'd like to talk about an issue that comes up in condominium associations… Covenant Enforcement.

Since 1992, anything that qualified as a dispute under Section 718.1255 of the Florida Condominium Act, Chapter 718, was required to go through mandatory non-binding arbitration through the Department of Business and Professional Regulation.

I've always found the arbitration program to be a great program, however, a couple years ago, at the legislative level, they decided to allow condominium associations to utilize a procedure that’s been used in homeowners associations for a number of years.

That procedure is set out in Section 720.311 of the Florida Statutes and provides for a mandatory mediation of disputes as a prerequisite to filing a lawsuit. Therefore, rather than going through arbitration, and submitting your petition for arbitration, having the arbitrator review it for jurisdiction, determining that they have jurisdiction, then sending out an order requiring the respondent to file an answer, then going through evidentiary hearings and other things – an association has the option of filing a demand that the violating party participate in mandatory mediation.

When you send out a demand for mandatory mediation, the responding party has 20 days to respond to that letter to let you know that either they agree to participate in the mediation, refuse to participate in mediation, or, they may ignore you completely. If they agree to participate, you’ll go to mediation where you sit down with a neutral mediator.

The mediator is going to help facilitate a resolution. Their job is to reduce expectations on all sides, so if nobody leaves happy, but everybody leaves with a result that they can live with, that's a successful mediation.

If the issue isn’t resolved through mediation, you end in what's called an impasse. Then you're free to file a lawsuit. To do this, you can go to County Court/Circuit Court (depending on the circumstances) and explain the issue to a judge, where you’ll go through the whole litigation process, and then a judge will make a decision for you.

If the responding party fails to respond or refuses to participate in mediation, even if they win, they are not entitled to recover legal fees in any lawsuit that might result afterwards. Therefore, there's a huge incentive to participate in mediation, and hopefully, to resolve the issue. Most disputes have a really good chance of resolving themselves at mediation, and the majority do get resolved there.

Depending on what your goals are for resolution, and how quickly you're looking to see results, the path of mediation can be quicker than the path of arbitration. However, it is always important to consult with your association lawyer to make the best decision for you and your situation that will hopefully gain the best result.

Michael E. Chapnick is a Florida Bar Board Certified Specialist in Condominium and Planned Unit Development Law. Learn more about Michael and how to work with him here