HOAs, Mediation, and You: How to Use Mediation in Homeowners Association Disputes
In Florida, depending on the type of dispute between you and your HOA, you may have to go through mediation before you (or your HOA) can take your issues to the courtroom.
Section 720.311 of the Florida Statutes requires that these issues go through mediation before a lawsuit can be filed:
● Disputes about the use of or changes to the parcel or common areas
● Covenant enforcement disputes
● Disputes about amendments to the association documents
● Disputes about meetings of the board
● Disputes about committees appointed by the board
● Disputes about membership meetings
● Disputes about access to the official records of the association
What is not required to go through mediation is:
● Disputes about the collection of any assessment, fine, or other financial obligation
(including attorney’s fees)
● Any action to enforce a prior mediation settlement.
If your troubles fall into the first category, you’ll need to meditate. But how do you start?
You must serve a demand to mediate (or be served)
According to the statute, the “aggrieved party” (that’s either you or your HOA) “shall serve the responding party a written demand to participate in pre-suit mediation. If you are worried about how and what to write, the statute actually gives you the language to use.
These demands are sent by certified mail with a return receipt, and a second copy is sent by first-class. The HOA (or you) will have 20 days from the mailing date to respond in writing. The statute also provides the response language if needed.
DO NOT ignore this service if you have been sent a demand to mediate from your HOA. If you are on the receiving end of a demand and don't respond within the time frame you will lose ANY claims, you may have to cover attorney’s fees and court costs.
The response will be sent in writing the same way that the demand was; One sent by certified mail with a read receipt, and a second sent by first-class mail.
The letter was sent and responded to. Now what?
In the demand letter, you wrote from the template in section 720.311, you were supposed to list five certified mediators for you and the HOA to agree on. If you aren’t sure where to start researching, the Florida Supreme Court can provide you with a list of certified mediators. Or you can start here with TriDialogue Mediation.
The Florida statutes require that both parties share the mediation fees equally unless you have agreed to a different arrangement. On average, mediation can take three to four hours. There could also be prep time involved. If you decide to retain a lawyer (they aren’t required) you’ll need to budget for their hourly fees as well.
You have 90 days to have your mediation conference unless both parties agree to extend that time in writing.
What happens if you just can’t agree?
Similar to not responding to the demand to mediate, there are several other ways that you or your HOA can lose any claim to attorney’s fees and costs:
● Not agreeing on a mediator
● Failure to make payments of fees and costs within the time set by your mediator
● Not appearing for a scheduled mediation (without the approval of the mediator)
If any of these happen, it is considered a failure or refusal to participate in the mediation, which allows the other party to be able to take the case to court and ask for costs and fees associated with the mediation.
It is a very big loss not to take part if you are the responding party. Litigation is more costly and time-consuming than mediation, and it would be even worse if you couldn’t claim those fees (even if you win!) because of a failure to mediate earlier on.
This situation can also happen if you both fail to reach an agreement. Whoever the “aggrieved” party is (Think the one who started the demand to mediate) can then go to court on all unsettled disputes.
What happens when you agree?
Congratulations, you have reached a settlement through mediation! Now what you have agreed on will be written down and will now be an enforceable commitment. The issues you agreed upon won’t need to be litigated in court. Remember, if you or the HOA fail to do what was agreed upon, this can go straight to court without another chance to meditate so make sure you are able to follow through on your agreements.
How do you start?
Navigating this process can be long and confusing. Or maybe you are on the receiving end and would like to know more about your options. If you want to talk through this process before deciding how to proceed, feel free to contact the professionals at TriDialogue Mediation at: contact@tridialoguemediation.com serving multiple counties across Florida.