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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 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.
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.
Note.--Former s. 617.311. |