The 2021 Florida Legislature expanded the use of mediation as a tool to resolve lawsuits in a number of different statutes. In doing so, the Legislature specifically recognized the value offered by mediation in efficiently and inexpensively resolving claims involving condominiums, homeowner’s associations (HOAs) and other entities. While arbitration was the sole method for pre-suit dispute resolution previously required by Florida law, the Legislature expanded pre-suit alternative dispute resolution (ADR) to now require either mediation or arbitration.
Both the revised condominium and HOA statutes now specifically state:
“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.”1
The previous law required arbitration before it was possible to file suit in regard to many issues between owners and their associations. The 2021 legislative session made that requirement one of either mediation or arbitration. That change probably resulted from the fact that the arbitration often added at least another year to any resolution of the dispute, because it was non-binding and usually required that a de novo lawsuit be filed. Mediation offers litigants a faster opportunity to reach resolution than litigation and provides parties to litigation the ability to exercise self-determination and choose their outcome themselves.
Each of the following Chapters of the Florida Statutes utilize ADR to resolve disputes: 718 Condominiums, 719 Cooperatives, 720 Homeowner’s Associations, and 723 Mobile Home Parks. Section 718.112 contains various provisions which must appear in the by-laws adopted by a condominium association. If these required provisions are excluded in the by-laws, a court must interpret them as part of the by-laws in the event of litigation. When this statute required non-binding arbitration before any suit could be filed, courts either dismissed or held the suit in abeyance until completed. The new provisions require “Alternative Dispute Resolution (ADR)” instead of “mandatory nonbinding arbitration.”2
“Dispute” is defined to exclude claims involving: “title; any warranty; the levy or collection of a fee or assessment; removal of a tenant; alleged violation of a fiduciary duty by a director; or damage claims based on an association’s maintenance duties.”3 Subsection (5) further excludes election and recall disputes. The Department of Business and Professional Regulation employs attorneys as arbitrators and maintains a list of private, certified mediators and arbitrators.
Changes in Sections 718.1255 (4)(a), (5) and (7), and 720.311 are the means through which mediation was inserted as another way to fulfill the ADR pre-suit requirement. A form for requesting mediation and another for agreeing to mediate are included in the statute, with a preface stating, “[a]n aggrieved party shall serve on the responding party a written demand to participate in presuit mediation…”4 The other chapters dealing with Cooperatives and Mobile Homes utilize different ADR processes. Section 719.1255 incorporates the provisions dealing with Condominiums into the chapter on Cooperatives. While section 723.038 states that parties to Mobile Home Park disputes may request mediation.
The message from the Florida Legislature is clear: Mediation works. Litigation should be a last resort. Such an approach is particularly important due to the historic backlog facing our courts.
1 Fla. Stat. §§ 718.112 (3)(b), 720.311 (1).
2 See §718.1255.
3 Id.
4 Fla. Stat. §720.311 (2)(a).