Florida Senate - 2015 SB 274
By Senator Soto
14-00026-15 2015274__
1 A bill to be entitled
2 An act relating to dispute resolution; amending s.
3 720.311, F.S.; requiring disputes regarding homesteads
4 to be the subject of a demand for presuit mediation;
5 providing an effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Paragraph (a) of subsection (2) of section
10 720.311, Florida Statutes, is amended to read:
11 720.311 Dispute resolution.—
12 (2)(a) Disputes between an association and a parcel owner
13 regarding use of or changes to the parcel or the common areas
14 and other covenant enforcement disputes, disputes regarding
15 homesteads, disputes regarding amendments to the association
16 documents, disputes regarding meetings of the board and
17 committees appointed by the board, membership meetings not
18 including election meetings, and access to the official records
19 of the association must shall be the subject of a demand for
20 presuit mediation served by an aggrieved party before the
21 dispute is filed in court. Presuit mediation proceedings must be
22 conducted in accordance with the applicable Florida Rules of
23 Civil Procedure, and these proceedings are privileged and
24 confidential to the same extent as court-ordered mediation.
25 Disputes subject to presuit mediation under this section may
26 shall not include the collection of an any assessment, fine, or
27 other financial obligation, including attorney attorney’s fees
28 and costs, claimed to be due or any action to enforce a prior
29 mediation settlement agreement between the parties. Also, in any
30 dispute subject to presuit mediation under this section which
31 requires where emergency relief is required, a motion for
32 temporary injunctive relief may be filed with the court without
33 first complying with the presuit mediation requirements of this
34 section. After any issues regarding emergency or temporary
35 relief are resolved, the court may either refer the parties to a
36 mediation program administered by the courts or require
37 mediation under this section. An arbitrator or judge may not
38 consider any information or evidence arising from the presuit
39 mediation proceeding except in a proceeding to impose sanctions
40 for failure to attend a presuit mediation session or to enforce
41 a mediated settlement agreement. Persons who are not parties to
42 the dispute may not attend the presuit mediation conference
43 without the consent of all parties, except for counsel for the
44 parties and a corporate representative designated by the
45 association. When mediation is attended by a quorum of the
46 board, such mediation is not a board meeting for purposes of
47 notice and participation set forth in s. 720.303. An aggrieved
48 party shall serve on the responding party a written demand to
49 participate in presuit mediation in substantially the following
50 form:
51
52 STATUTORY OFFER TO PARTICIPATE
53 IN PRESUIT MEDIATION
54
55 The alleged aggrieved party, ................, hereby
56 demands that ................, as the responding
57 party, engage in mandatory presuit mediation in
58 connection with the following disputes, which by
59 statute are of a type that are subject to presuit
60 mediation:
61
62 (List specific nature of the dispute or disputes to be
63 mediated and the authority supporting a finding of a
64 violation as to each dispute.)
65
66 Pursuant to section 720.311, Florida Statutes, this
67 demand to resolve the dispute through presuit
68 mediation is required before a lawsuit can be filed
69 concerning the dispute. Pursuant to the statute, the
70 parties are required to engage in presuit mediation
71 with a neutral third-party mediator in order to
72 attempt to resolve this dispute without court action,
73 and the aggrieved party demands that you likewise
74 agree to this process. If you fail to participate in
75 the mediation process, suit may be brought against you
76 without further warning.
77
78 The process of mediation involves a supervised
79 negotiation process in which a trained, neutral third
80 party mediator meets with both parties and assists
81 them in exploring possible opportunities for resolving
82 part or all of the dispute. By agreeing to participate
83 in presuit mediation, you are not bound in any way to
84 change your position. Furthermore, the mediator has no
85 authority to make any decisions in this matter or to
86 determine who is right or wrong and merely acts as a
87 facilitator to ensure that each party understands the
88 position of the other party and that all options for
89 reasonable settlement are fully explored.
90
91 If an agreement is reached, it shall be reduced to
92 writing and becomes a binding and enforceable
93 commitment of the parties. A resolution of one or more
94 disputes in this fashion avoids the need to litigate
95 these issues in court. The failure to reach an
96 agreement, or the failure of a party to participate in
97 the process, results in the mediator declaring an
98 impasse in the mediation, after which the aggrieved
99 party may proceed to court on all outstanding,
100 unsettled disputes. If you have failed or refused to
101 participate in the entire mediation process, you will
102 not be entitled to recover attorney attorney’s fees,
103 even if you prevail.
104
105 The aggrieved party has selected and hereby lists five
106 certified mediators who we believe to be neutral and
107 qualified to mediate the dispute. You have the right
108 to select any one of these mediators. The fact that
109 one party may be familiar with one or more of the
110 listed mediators does not mean that the mediator
111 cannot act as a neutral and impartial facilitator. Any
112 mediator who cannot act in this capacity is required
113 ethically to decline to accept engagement. The
114 mediators that we suggest, and their current hourly
115 rates, are as follows:
116
117 (List the names, addresses, telephone numbers, and
118 hourly rates of the mediators. Other pertinent
119 information about the background of the mediators may
120 be included as an attachment.)
121
122 You may contact the offices of these mediators to
123 confirm that the listed mediators will be neutral and
124 will not show any favoritism toward either party. The
125 Florida Supreme Court can provide you a list of
126 certified mediators.
127
128 Unless otherwise agreed by the parties, section
129 720.311(2)(b), Florida Statutes, requires that the
130 parties share the costs of presuit mediation equally,
131 including the fee charged by the mediator. An average
132 mediation may require 3 three to 4 four hours of the
133 mediator’s time, including some preparation time, and
134 the parties would need to share equally the mediator’s
135 fees as well as their own attorney attorney’s fees if
136 they choose to employ an attorney in connection with
137 the mediation. However, use of an attorney is not
138 required and is at the option of each party. The
139 mediators may require the advance payment of some or
140 all of the anticipated fees. The aggrieved party
141 hereby agrees to pay or prepay one-half of the
142 mediator’s estimated fees and to forward this amount
143 or such other reasonable advance deposits as the
144 mediator requires for this purpose. Any funds
145 deposited will be returned to you if these are in
146 excess of your share of the fees incurred.
147
148 To begin your participation in presuit mediation to
149 try to resolve the dispute and avoid further legal
150 action, please sign below and clearly indicate which
151 mediator is acceptable to you. We will then ask the
152 mediator to schedule a mutually convenient time and
153 place for the mediation conference to be held. The
154 mediation conference must be held within 90 ninety
155 (90) days of this date, unless extended by mutual
156 written agreement. In the event that you fail to
157 respond within 20 days from the date of this letter,
158 or if you fail to agree to at least one of the
159 mediators that we have suggested or to pay or prepay
160 to the mediator one-half of the costs involved, the
161 aggrieved party will be authorized to proceed with the
162 filing of a lawsuit against you without further notice
163 and may seek an award of attorney attorney’s fees or
164 costs incurred in attempting to obtain mediation.
165
166 Therefore, please give this matter your immediate
167 attention. By law, your response must be mailed by
168 certified mail, return receipt requested, and by
169 first-class mail to the address shown on this demand.
170
171 ........................
172 ........................
173
174 RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR
175 AGREEMENT TO THAT CHOICE.
176
177 AGREEMENT TO MEDIATE
178
179 The undersigned hereby agrees to participate in
180 presuit mediation and agrees to attend a mediation
181 conducted by the following mediator or mediators who
182 are listed above as someone who would be acceptable to
183 mediate this dispute:
184
185 (List acceptable mediator or mediators.)
186
187 I/we further agree to pay or prepay one-half of the
188 mediator’s fees and to forward such advance deposits
189 as the mediator may require for this purpose.
190
191 ........................
192 Signature of responding party #1
193
194 ........................
195 Telephone contact information
196
197 ........................
198 Signature and telephone contact information of
199 responding party #2 (if applicable)(If property is
200 owned by more than one person, all owners must sign.)
201
202 Section 2. This act shall take effect July 1, 2015.