If the Board of Directors or the management company for your Homeowners’ Association believes you have violated the governing documents of your community, which includes the deed restrictions, by-laws, or rule and regulations of your community, they can either fine you or proceed with legal action to enforce your compliance.
If the Association chooses to seek a judgment from a court to require your compliance it must first offer to mediate the case with you. If either party fails to participate in the mediation process, that party waives its right to recover its reasonable attorney’s fees and costs as prevailing party in any subsequent law suit.
This is why it is so important to respond to an offer to mediate in a timely manner. Failing to do so ensures a lawsuit will be filed against you (unless you immediate comply with all demands of the HOA), and puts you at a distinct disadvantage in the lawsuit; while the Association will be seeking to recover its fees from you, you will not be able to recover your fees even if you prevail.
The offer to mediate will be in writing and provided by U.S. Mail to your last known address on file with the Association. The content of the offer to mediate is specifically laid out in the Homeowners Association Act, Chapter 720, Florida Statutes, and is shown at the end of this post.
The offer will provide a list of mediators for the homeowner to choose from. The list should include phone numbers for the mediators, and hourly pricing. You can call the mediators if you so choose as part of determining which mediator you are most comfortable with. Also keep in mind that you will be responsible for half of the cost of the mediator.
The process of mediation is generally preferable to a lawsuit. It is usually less expensive, and allows you as the homeowner more input into the settlement that is reached to resolve the dispute. In the event of a lawsuit neither party has direct input into the resolution. The judge merely tells the parties what must be done in the form of the Final Judgment. With mediation a discussion occurs where both parties compromise to reach an agreement that both are comfortable with. In the event settlement can not be reached both parties still have the option to file suit.
Please see below the form of the Offer to Mediate as required by statute.
Francis M. King, Esq.
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.)
Pursuant to section 720.311, Florida Statutes, 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)