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Homeowners’ association (HOA) disputes involve disagreements between the HOA Board and homeowners as well as between the homeowners.
Disputes between HOA Board and homeowners arise for various reasons:
Homeowners can disagree on multiple other issues, giving rise to a dispute:
Internal Mechanisms
The HOA Board has a twofold role in disputes between homeowners. First, it can act as a decision-maker or a neutral negotiator. Any homeowner can initiate the internal dispute resolution process by filing a request for HOA intervention.
In disputes that involve the HOA Board, the neutral third party (HOA management company) resolves the conflict between the HOA Board and the homeowners.
Litigation
Each party can file a lawsuit and initiate litigation if attempts to resolve the conflict internally end unsuccessfully.
However, litigating HOA disputes is a years-long and costly process. In most cases, it can take months to get a court schedule. Besides, attorneys fees, court filing fees, and other administrative expenses make litigation exhausting and financially draining.
Extra Bureaucracy
Earlier this year, the Florida House Regulatory Reform Subcommittee approved a bill creating the State Ombudsman Office for HOA disputes.
HB 1033 seeks to keep HOA disputes from reaching the courts by establishing a State Ombudsman Office to offer non-binding arbitration in HOA disputes and an appeals process for HOA fines.
The legislators supporting the bill argue that the homeowners association complaints outnumber all other grievances addressed to the official authorities, adding even more burden to the court system.
However, others expressed concerns pointing to the costs of the HOA ombudsman office. That means the homeowners pay additional expenses from the general fund, carrying the burden of extra bureaucracy.
Furthermore, additional layers of bureaucracy create the problem of assembling a five-members HOA appeals board. In small communities, even filling an HOA board can be difficult.
Although the initial intention behind establishing a State Ombudsman Office was to help the court system already clogged with cases, it can potentially lead to an even more complex process of resolving the HOA disputes. Moreover, given that the proposed solution offers non-binding arbitration, unresolved conflicts would eventually end up in court, creating a vicious circle.
For that reason, mediating HOA disputes is the most effective dispute resolution method between homeowners and the HOA Board.
Florida law (Statute 720.311) mandates pre-suit mediation in disputes between homeowners and homeowners associations.
Unlike adversarial litigation, mediation offers a non-adversarial and reconciliatory experience. It aims at finding the lowest common denominator between the conflicting parties. Starting from common ground, the mediator leads negotiations attempting to bridge the differences and reach a settlement.
A mediator is a neutral person (a retired judge or an attorney) voluntarily chosen by the parties to facilitate their negotiations without decision-making authority. The mediator combines subject matter experience with sophisticated communication skills, helping the parties to settle. The effect of mediation can be a settlement, partial agreement, or no agreement. If the mediation is unsuccessful, the parties can initiate litigation.
Unless the parties agree, nothing shared during mediation can be disclosed. Confidentiality is an inherent trait of this alternative dispute resolution method, contrary to public litigation procedures. Confidentiality extends to future litigation, meaning the parties cannot use confidential information in the discovery if mediation fails.
Mediation is far quicker and more affordable than litigation. Free from discovery, witness examination, and closing arguments, mediation brings resolution in weeks or even days.
The process consists of four stages: introduction, opening statements, private sessions (caucuses), and joint sessions. After introducing themselves, the mediator explains the procedure to the parties, offering them the opportunity to give opening statements. In private sessions, the parties withdraw to separate rooms, sharing their views regarding the dispute with the mediator. The mediator goes back and forth between the rooms, assessing each position and the possibility of settlement. The mediator then conducts a joint session where the parties openly discuss all contested issues, bringing offers and counteroffers. The mediator does not have the authority to issue a decision, propose a solution, or give legal advice. Instead, their role is to stay neutral and facilitate negotiations.
The mediation explores the opposite interests and finds the point where those interests converge. From that point, the mediator leads the parties to a settlement.
If they settle, both parties sign an enforceable binding agreement.
Thomas Chase is a Florida Supreme Court-certified mediator with years of experience mediating HOA disputes.
Mediating HOA Disputes in Florida makes more sense than ever. Mr. Chase will help you learn why. He is available for “in-person” mediations in Lee County, Charlotte County and Collier County, Florida. He also mediates by Zoom throughout the state of Florida.
Please reach out today to schedule your mediation.