Commentary: HOA disputes: A question of authority

Who will appear at a mediation conference should be disclosed.

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  • | 1:00 a.m. May 2, 2024
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John McCorvey Jr.
John McCorvey Jr.
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The processes and procedures for alternative dispute resolution of home owner association disputes are set forth in sec. 720.311, Florida Statutes (2023).

The governing statute lists the types of HOA disputes that are subject to mandatory presuit mediation.

Mandatory presuit mediation means the dispute must be mediated before the aggrieved party may file a formal legal action seeking redress for their grievance, unless the responding party fails to participate in the mandatory presuit mediation process, which includes the failure to appear for a scheduled mediation.

Unfortunately, a common scenario at mandatory presuit mediation of an HOA dispute is that after several hours of negotiation an agreement is reached that counsel for the HOA declares “is subject to approval by the HOA board of directors.”

This begs the question of authority.

The governing statute states that “[p]resuit mediation proceedings must be conducted in accordance with the applicable Florida Rules of Civil Procedure....”1 The Florida Rules of Civil Procedure common to mediation and arbitration are Rules 1.700, et. seq. Fla. R. Civ. P.

A party is deemed to appear at a mediation conference if the following persons are physically or, when permissible, virtually present, “the party or a party representative having full authority to settle without further consultation;....”

Rule 1.720(c), Fla. R. Civ. P., states further, in pertinent part, “a “party representative having full authority to settle” shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party.”

The governing statute, itself, contemplates the appearance of “a corporate representative designated by the association.”

While not required, the governing statute also contemplates the appearance of a “quorum of the board” at mediation.

The question arises: Is Rule 1.720(b), Fla. R. Civ. P., a Florida Rule of Civil Procedure applicable to mandatory presuit mediation under the governing statute? Do some parts of Rule 1.720 apply, but not others, such as subsection (e) since there is no pending case in which the “parties” can file a certificate of authority?

If subsections (b) and (c) of Rule 1.720, Fla. R. Civ. P. apply to mandatory presuit HOA mediation, and are not complied with, the implications are meaningful.

Under sec. 720.311(2)(b), Florida Statutes, “[t]he failure... to appear for a scheduled mediation session...shall constitute the failure or refusal to participate in the mediation process...entitling the other party to proceed in court and to seek an award of the costs and fees associated with the mediation, including mediation fees, attorneys’ fees and costs.”

In my opinion, the governing statute should be revised to include a mechanism similar to that employed by Rule 1.720(e), Fla. R. Civ. P., in which each party is required to disclose to the other, and file with the court, at least 10 days prior to the mediation conference, a written notice identifying the person or persons who will appear at the mediation conference and confirm that those persons have the authority required by subsection (b), i.e., full settlement authority.

While such disclosure would not be filed with the court in the context of a mandatory presuit HOA mediation, it would certainly provide clarification and certainty with regard to the authority of association representatives appearing at mandatory presuit HOA mediation to bind the association to a written settlement agreement.

John McCorvey has 34 years of experience in civil litigation, which he uses to help counsel and parties reach settlement agreements in a range of cases, focusing on business disputes and HOA and condominium presuit mediation.



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