(1) DEFINITIONS.- As used in this section, the
term "dispute" means any disagreement between two or
more parties that involves:
(a) The authority of the board of directors, under this chapter
or association document to:
1. Require any owner to take any action, or not to take any action,
involving that owner's unit or the appurtenances thereto.
2. Alter or add to a common area or element.
(b) The failure of a governing body, when required by this chapter
or an association document, to:
1. Properly conduct elections.
2. Give adequate notice of meetings or other actions.
3. Properly conduct meetings.
4. Allow inspection of books and records.
"Dispute" does not include any disagreement that primarily
involves: title to any unit or common element; the interpretation
or enforcement of any warranty; the levy of a fee or assessment,
or the collection of an assessment levied against a party; the
eviction or other removal of a tenant from a unit; alleged breaches
of fiduciary duty by one or more directors; or claims for damages
to a unit based upon the alleged failure of the association to
maintain the common elements or condominium property.
(2) VOLUNTARY MEDIATION.- Voluntary mediation
through Citizen Dispute Settlement Centers as provided for in
s. 44.201 is encouraged.
(3) LEGISLATIVE FINDINGS.-
(a) The Legislature finds that unit owners are frequently at a
disadvantage when litigating against an association. Specifically,
a condominium association, with its statutory assessment authority,
is often more able to bear the costs and expenses of litigation
than the unit owner who must rely on his or her own financial
resources to satisfy the costs of litigation against the association.
(b) The Legislature finds that the courts are becoming overcrowded
with condominium and other disputes, and further finds that alternative
dispute resolution has been making progress in reducing court
dockets and trials and in offering a more efficient, cost-effective
option to court litigation. However, the Legislature also finds
that alternative dispute resolution should not be used as a mechanism
to encourage the filing of frivolous or nuisance suits.
(c) There exists a need to develop a flexible means of alternative
dispute resolution that directs disputes to the most efficient
means of resolution.
(d) The high cost and significant delay of circuit court litigation
faced by unit owners in the state can be alleviated by requiring
nonbinding arbitration and mediation in appropriate cases, thereby
reducing delay and attorney's fees while preserving the right
of either party to have its case heard by a jury, if applicable,
in a court of law.
(4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
DISPUTES.- The Division of Florida Land Sales, Condominiums,
and Mobile Homes of the Department of Business and Professional
Regulation shall employ full-time attorneys to act as arbitrators
to conduct the arbitration hearings provided by this chapter.
The division may also certify attorneys who are not employed by
the division to act as arbitrators to conduct the arbitration
hearings provided by this section. No person may be employed by
the department as a full-time arbitrator unless he or she is a
member in good standing of The Florida Bar. The department shall
promulgate rules of procedure to govern such arbitration hearings
including mediation incident thereto. The decision of an arbitrator
shall be final; however, such a decision shall not be deemed final
agency action. Nothing in this provision shall be construed to
foreclose parties from proceeding in a trial de novo unless the
parties have agreed that the arbitration is binding. If such judicial
proceedings are initiated, the final decision of the arbitrator
shall be admissible in evidence in the trial de novo.
(a) Prior to the institution of court litigation, a party to a
dispute shall petition the division for nonbinding arbitration.
The petition must be accompanied by a filing fee in the amount
of $50. Filing fees collected under this section must be used
to defray the expenses of the alternative dispute resolution program.
(b) The petition must recite, and have attached thereto, supporting
proof that the petitioner gave the respondents:
1. Advance written notice of the specific nature of the dispute;
2. A demand for relief, and a reasonable opportunity to comply
or to provide the relief; and
3. Notice of the intention to file an arbitration petition or
other legal action in the absence of a resolution of the dispute.
Failure to include the allegations or proof of compliance with
these prerequisites requires dismissal of the petition without
(c) Upon receipt, the petition shall be promptly reviewed by the
division to determine the existence of a dispute and compliance
with the requirements of paragraphs (a) and (b). If emergency
relief is required and is not available through arbitration, a
motion to stay the arbitration may be filed. The motion must be
accompanied by a verified petition alleging facts that, if proven,
would support entry of a temporary injunction, and if an appropriate
motion and supporting papers are filed, the division may abate
the arbitration pending a court hearing and disposition of a motion
for temporary injunction.
(d) Upon determination by the division that a dispute exists and
that the petition substantially meets the requirements of paragraphs
(a) and (b) and any other applicable rules, a copy of the petition
shall forthwith be served by the division upon all respondents.
(e) Either before or after the filing of the respondents' answer
to the petition, any party may request that the arbitrator refer
the case to mediation under this section and any rules adopted
by the division. Upon receipt of a request for mediation, the
division shall promptly contact the parties to determine if there
is agreement that mediation
would be appropriate. If all parties agree, the dispute must be
referred to mediation. Notwithstanding a lack of an agreement
by all parties, the arbitrator may refer a dispute to mediation
at any time.
(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
(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
(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.
(i) Arbitration shall be conducted according to rules promulgated
by the division. The filing of a petition for arbitration shall
toll the applicable statute of limitations.
(j) At the request of any party to the arbitration, such arbitrator
shall issue subpoenas for the attendance of witnesses and the
production of books, records, documents, and other evidence and
any party on whose behalf a subpoena is issued may apply to the
court for orders compelling such attendance and production. Subpoenas
shall be served and shall be enforceable in the manner provided
by the Florida Rules of Civil Procedure. Discovery may, in the
discretion of the arbitrator, be permitted in the manner provided
by the Florida Rules of Civil Procedure. Rules adopted by the
division may authorize any reasonable sanctions except contempt
for a violation of the arbitration procedural rules of the division
or for the failure of a party to comply with a reasonable nonfinal
order issued by an arbitrator which is not under judicial review.
(k) The arbitration decision shall be presented to the parties
in writing. An arbitration decision is final in those disputes
in which the parties have agreed to be bound. An arbitration decision
is also final if a complaint for a trial de novo is not filed
in a court of competent jurisdiction in which the condominium
is located within 30 days. The right to file for a trial de novo
entitles the parties to file a complaint in the appropriate trial
court for a judicial resolution of the dispute. The prevailing
party in an arbitration proceeding shall be awarded the costs
of the arbitration and reasonable attorney's fees in an amount
determined by the arbitrator. Such an award shall include the
costs and reasonable attorney's fees incurred in the arbitration
proceeding as well as the costs and reasonable attorney's fees
incurred in preparing for and attending any scheduled mediation.
(l) The party who files a complaint for a trial de novo shall
be assessed the other party's arbitration costs, court costs,
and other reasonable costs, including attorney's fees, investigation
expenses, and expenses for expert or other testimony or evidence
incurred after the arbitration hearing if the judgment upon the
trial de novo is not more favorable than the arbitration decision.
If the judgment is more favorable, the party who filed a complaint
for trial de novo shall be awarded reasonable court costs and
(m) Any party to an arbitration proceeding may enforce an arbitration
award by filing a petition in a court of competent jurisdiction
in which the condominium is located. A petition may not be granted
unless the time for appeal by the filing of a complaint for trial
de novo has expired. If a complaint for a trial de novo has been
filed, a petition may not be granted with respect to an arbitration
award that has been stayed. If the petition for enforcement is
granted, the petitioner shall recover reasonable attorney's fees
and costs incurred in enforcing the arbitration award. A mediation
settlement may also be enforced through the county or circuit
court, as applicable, and any costs and fees incurred in the enforcement
of a settlement agreement reached at mediation must be awarded
to the prevailing party in any enforcement action.