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As a Florida Supreme Court Certified County Court Mediator, I find just about everyone agrees that mediation works and is always a better alternative than litigation.
But, before we address the issue of mediation, we have discovered yet a better alternative to dispute resolutions.
The United States District Judge Gregory A. Presnell, in a recent Order issued by the United States District Court, Middle District of Florida, Orlando Division had a case where two attorneys could not agree on procedures in a case they were involved with called Avista Management, Inc. v Wausau Underwriters Insurance Company . Therefore the Judge, when asked to order a location for deposition, instead,
“Ordered that said motion is denied. Instead the Court will fashion a new form of alternative dispute resolution to wit: at 4:00 PM on Friday, June 30, 2006 , counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave. , Tampa , Florida 33602 . Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of ‘rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the 30(b)(6) disposition to be held somewhere in Hillsborough County during the period July 11-12, 2006 .”
Albeit the procedure fashioned by Judge Presnell would seem appropriate to many community association disputes, it has little chance of becoming law.
Let's look at part of the background of the Mediation program.
In a Petition to the Supreme Court several years ago the ADR Rules and Policy Committee stated “However a general consensus, starting with the 1988 Society of Professionals in Dispute Resolution Commission on Qualifications, has developed in the alternative dispute resolution field that possession of paper credentials (academic degrees) does not accurately predict an individual's ability to be a good mediator.”
Under the certification and standards that were in place at that time, there were several nationally known mediators that could not serve in Florida and it was pointed out that even former President Jimmy Carter could not be certified under the qualification rules at that time and continues, “Consistent with this consensus, in 1999, the American Bar Association Section on Dispute Resolution adopted a resolution that provides that all individuals with appropriate training and qualifications should be permitted to serve as mediators and arbitrators, regardless of whether they are attorneys.”
As in any confrontational situation, there are several misconceptions concerning mediation, including that there is extensive paperwork.
In our experience, we find this is actually not the case in that mediation can be entered into with a minimum amount of paperwork, compared with initiating litigation.
It is extremely helpful that the expense of formal depositions and discovery are not necessary when the parties can sit down across the table and provide information that might otherwise be guarded or unavailable.
It is patently more timely to proceed through the homeowner association and condominium association mediation proceedings outlined in Florida Statutes 720 and 718 than to have to wait for court dates and file motions which are often continued and contested.
In every litigation case we've been involved in, by the time it gets to the judge mediation is ordered anyway before anything further can be done.
It would be extremely beneficial to expand on educational courses available to community association members and boards so the process is better understood and considered prior to initiation of litigation that becomes confrontational and adversarial to the point of destroying the social fabric in communities.
Attorneys also need to be trained and educated in mediation techniques and benefits in order to understand that resolving conflicts in this manner are interest based and not necessarily law based.
Susan Dubow, a State renowned mediator with Mediation Training Group (www.mediationtraininggroup.com) identifies low resolution rates for some mediation as being attributed to three things:
- The participants do not understand their role in mediation and/or what mediation is.
- The attorneys really do not understand what mediation is and the benefits of settling a case at mediation; or do not want to settle the case in this manner.
- The mediators used are not highly trained and/or experienced and/or talented as mediators and also may not have any expertise or understanding of the special dynamics of the homeowners/condo assoc mediation.
There is no obligation to settle every case in mediation and it is not a reasonable expectation that every case will settle. Even in those cases where there may be an impasse, or lack of resolution, there are several tangential benefits to mediation:
It offers opportunity for all the parties to have inexpensive or much less expensive discovery by being able to communicate across the table.
It provides either validation of the issue or vindication and resolves the problem.
It helps identify other parties that may have a bearing on the case.
It also often lowers the expectations of the clients where they are able to hear what the other party and their attorneys have to say concerning the issues.
Let's look at the Mediation provisions of Florida Statutes 718 and 720.
In Florida Statute 718.1255(4)(f), (g), (h) it states:
(f) Upon referral of a case to mediation, the parties must select a mutually acceptable mediator. To assist in the selection, the arbitrator shall provide the parties with a list of both volunteer and paid mediators that have been certified by the division under s. 718.501. If the parties are unable to agree on a mediator within the time allowed by the arbitrator, the arbitrator shall appoint a mediator from the list of certified mediators. If a case is referred to mediation, the parties shall attend a mediation conference, as scheduled by the parties and the mediator. If any party fails to attend a duly noticed mediation conference, without the permission or approval of the arbitrator or mediator, the arbitrator must impose sanctions against the party, including the striking of any pleadings filed, the entry of an order of dismissal or default if appropriate, and the award of costs and attorneys' fees incurred by the other parties. Unless otherwise agreed to by the parties or as provided by order of the arbitrator, a party is deemed to have appeared at a mediation conference by the physical presence of the party or its representative having full authority to settle without further consultation, provided that an association may comply by having one or more representatives present with full authority to negotiate a settlement and recommend that the board of administration ratify and approve such a settlement within 5 days from the date of the mediation conference. The parties shall share equally the expense of mediation, unless they agree otherwise.
(g) The purpose of mediation as provided for by this section is to present the parties with an opportunity to resolve the underlying dispute in good faith, and with a minimum expenditure of time and resources.
(h) Mediation proceedings must generally be conducted in accordance with the Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation. Persons who are not parties to the dispute are not allowed to attend the mediation conference without the consent of all parties, with the exception of counsel for the parties and corporate representatives designated to appear for a party. If the mediator declares an impasse after a mediation conference has been held, the arbitration proceeding terminates, unless all parties agree in writing to continue the arbitration proceeding, in which case the arbitrator's decision shall be either binding or nonbinding, as agreed upon by the parties; in the arbitration proceeding, the arbitrator shall not consider any evidence relating to the unsuccessful mediation except in a proceeding to impose sanctions for failure to appear at the mediation conference. If the parties do not agree to continue arbitration, the arbitrator shall enter an order of dismissal, and either party may institute a suit in a court of competent jurisdiction. The parties may seek to recover any costs and attorneys' fees incurred in connection with arbitration and mediation proceedings under this section as part of the costs and fees that may be recovered by the prevailing party in any subsequent litigation.
For Homeowner Associations we look to Florida Statute 720.311(2)(a) which states in part “disputes between an association and a parcel owner regarding use of or changes to the parcel or common areas or other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board or committees appointed by the board, membership meetings not including election meetings and access to the official records of the association, shall be filed with the Department for mandatory mediation before the dispute is filed in court.”
There was, in our opinion, a misguided attempt last year to change the law to require Mediators for homeowner association issues must be attorneys. This is contrary to the initiatives and directions of the Florida Supreme Court and was one of the issues that may have contributed to the vetoing of that legislation.
by Association Times' Staff Writer
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