Attorneys like me who have spent their careers litigating will tell you that litigation in court is grueling, expensive, lengthy, aggravating and time consuming. And those are the good points. As a result, and due to the need to un-clog the court system, The Florida Legislature created mandatory alternatives to court litigation.
Mandatory arbitration has been around a long time for most condo disputes. Cases involving who is responsible for certain repairs, material alterations made without a vote, failure to properly hold elections, conduct meetings, nuisance allegations and pet cases are examples of typical cases that arbitrators at the Department of Business and Professional Regulation deal with all the time. The case gets assigned to an arbitrator employed by the DBPR and within a few months, the case is typically concluded. The loser has the right to apply in court for a trial de novo and in effect, the whole process starts again.
For Florida HOA’s however, only cases involving election and recall disputes are eligible for arbitration.
HOA disputes are often times required to start in mediation, rather than in arbitration or in a courtroom. I was appointed by the Florida Supreme Court as a Circuit Court mediator many years ago and enjoy serving in that capacity. For those of you unfamiliar with mediation, think of a conference table where the mediator sits at the head of the table. The parties and their counsel are on both sides. Typically, it’s the association on one side and the unit owner on the other. The mediator explains the process is confidential, and that even though neither party will likely get everything they want today, if the parties settle on terms they can each live with, they have just saved perhaps years of litigation, time, money and energy. I like to tell everyone that if both sides walk out at the end of the day feeling a little miserable, I did my job. The mediator lets both parties make opening statements and then separates the parties into different rooms, spending the next few hours going back and forth trying to reach a compromised settlement. If they do, the agreement is put in writing and is enforceable in a court of law. Mediation is successful in an overwhelming majority of cases.
These are the alternative dispute resolution procedures most of you are familiar with. There is another procedure that most of you are not familiar with however and it involves buying the judge. Yes, you read me correctly. Suppose the parties had the ability to agree that it’s best to stay out of the courtroom due to all of the problems mentioned above? In addition, suppose the parties were concerned that if the case were filed in court, it may wind up in front of a judge with little or no experience in association law? Suppose the parties had the ability to select a “trial resolution” judge of their choice? A trial resolution judge who is an expert in association law and whose sole job is to basically hold a final hearing, listen to all the witnesses and legal arguments and render a final opinion, that can actually be appealed. That’s right, the entire process requiring only one appearance and one final hearing. Sound too good to be true? It is true and totally legal.
Florida Statute 44.104 states that:
Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to …….voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.
Needless to say, the parties have to agree in writing to this arrangement and agree on the compensation to be paid to the judge of their choice. The agreed upon judge simply must be a member of The Florida Bar for at least five years. The filing fee actually gets paid to the clerk of court, and the judge assigned to the case simply enters an order appointing the judge that the parties agreed to.
Filing of the application for voluntary trial resolution will toll the running of the applicable statutes of limitation. In addition, the trial resolution judge may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide. At the request of any party, the trial resolution judge shall issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law.
The trial resolution judge may determine any question and render a final decision and The Florida Evidence Code applies. Any party may enforce a final decision rendered in a voluntary trial by filing a petition for final judgment in the circuit court in the circuit in which the voluntary trial took place. Upon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court. Factual findings determined in the voluntary trial are not subject to appeal.
If you’re tired of cases lingering through the court system year after year, and the parties want their day in court quickly, and trust the knowledge and impartiality of the mutually agreeable judge, this is a legal and perhaps very practical way of accomplishing same.