YOU MAY WANT TO WAIT BEFORE YOU LITIGATE

Funny how things work sometimes.  Over the past 23 years, I have noticed an interesting pattern in Florida community associations.  When money is tight and foreclosures are soaring, associations are far less likely to engage in litigation.  Suddenly, nobody really cares what color someone painted their house or whether or not they have a pick-up truck in their driveway.

 

The reverse of that is true as well.  When foreclosures are low, suddenly there are apparently more violations than ever, none of which will be tolerated and it’s off to the courthouse for everyone.  That seems to be what is happening now, as the foreclosure crisis draws to a close.  Litigation is picking up.

 

Over the years, Florida association law has changed by removing certain types of cases from the courts that involve community associations.  There is a difference however in how condominiums and homeowner associations addressed this issue.

 

Most disputes in condominiums must start off in arbitration rather than court.  A petition is filed with the Department of Business and Professional Regulation and the case is assigned to an arbitrator.  These types of cases generally include election and recall disputes, material alterations to the common areas, failure to properly notice meetings and failure to provide access to records.  The idea behind the arbitration statute was simply to keep cases out of a real courtroom.  Arbitrators can even assign your case to a mediator who will meet with the parties and attempt to get the matter resolved.  Here is the problem though with the current statute.  If the arbitrator refers the case to the mediator, and the mediator fails to achieve a settlement, either party may refuse to continue with arbitration and then either party may pursue their case in a court of law.  The statute makes no sense.  Just like in court, if the mediator fails to achieve a settlement, the case should go back to the decision maker, the arbitrator, for a final resolution.  Why spend money arbitrating, only to be forced into a courtroom if the mediation doesn’t work out where the money is now really about to fly?   The arbitrator should simply make a ruling.

 

I just drafted proposed legislation that hopefully will fix this mess and require the arbitrator to finish the case if the mediator does not achieve a settlement.  It will put an end  to either party deliberately not settling at mediation, knowing that by doing so they force the other party to litigate in court if they want to protect their rights, but that it’s highly unlikely that they will choose that route because they can’t afford it and will simply have to drop the case.  When the bill is actually filed, I will encourage all of you to voice strong support for it.

 

About 7 years ago, I had the honor of being appointed as a Circuit Court Mediator by The Florida Supreme Court.  For those of you who don’t know what mediation is, here’s a brief primer.  A mediator sits at the head of a conference table and asks the parties and the lawyers to discuss the merits of their case.  He or she tells them that it’s best to resolve the case today on terms that they can each live with, although neither party will certainly get everything they want.  The proceedings are completely confidential.  When I act as a mediator, I always tell the parties that if both sides walk out feeling a little miserable, I probably did a good job that day.  If the parties don’t settle at mediation, they are made aware that litigation is often grueling, nerve racking, never-ending, tiresome, costly, aggravating and most importantly, unpredictable.  The truth is…..despite every attorney thinking their case is excellent, they are wrong half the time.  And, even when you win, its unlikely you will recover everything you thought you deserved.

 

HOA members are lucky.  Florida law requires disputes in an HOA to be mediated before going to a courtroom.  A good mediator should be able to settle these fights between an association and an owner in an overwhelming majority of cases.  Mediation works and is a wonderful idea.

 

I write this blog today after settling a case last week that I worked on for longer than a decade.  The terms of the settlement are confidential.  The case settled at a mediation conference.  Throughout the years, there have been countless court hearings, depositions, client meetings, thousands of pages of documents drafted and court decisions that both parties weren’t always thrilled with.  Never mind the expense and aggravation and time along the way.  Mediation finally put an end to all of that.

 

Of course not every case can be settled, but statistics show that about 99% of all cases are ultimately settled without going to trial.  I’m all in favor of trying to accomplish same early in the process, like the HOA statute tries to do.  If you’re looking for complete justice in a courtroom, I’m telling you that far more often than not, you are going to be disappointed.

 

Have any of you been wrapped up in a never ending legal nightmare?  How did it turn out?  Would you do it all over again?  Did you mediate?  Did that result in a settlement?  How about some stories, suggestions and opinions?

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