Mediation is an effective process for dispute resolution with a high percentage of cases settling at mediation.
Nonetheless, pre-suit homeowners association disputes possess unique dynamics that impact the likelihood of settlement. Pre-suit HOA disputes are governed by §720.311, Florida Statutes, and do not involve money damages. A typical dispute will involve a change made by the homeowner to their property, or an activity on the property, that the association considers in violation of the governing documents.
Some examples include painting a home the “wrong” color, erecting a “nonconforming” fence, parking, landscaping, and even unusual pets like chickens.
These disputes tend to be more of an “all or nothing” nature because they do not involve negotiating the payment of money for damages.
They are also emotionally charged. The homeowner often feels “singled out” because other homes in the neighborhood may have similar violations, or because the homeowner thinks one or more members of the HOA board are pursuing a personal vendetta.
The HOA board may be resistant to compromise because it does not want to create an exception to the governing documents that opens the floodgates to similar violations.
Often, interactions between the homeowner and HOA board have taken place before pre-suit mediation that result in animosity between the homeowner and the asssociation.
The difficulty in settling pre-suit HOA disputes is often compounded by the fact that most homeowners, and some associations, have never been in litigation. Therefore, it is critical that the mediator explain the litigation process including the expense, stress and the uncertainty of outcome inherent to litigation.
The exposure to payment of the prevailing party’s attorney’s fees is another critical factor in evaluating settlement.
Even after such factors are discussed, many homeowners and associations often refuse to settle in pre-suit mediation on the basis of principle.
Some homeowners and associations have the resources to fund the lawsuit and some do not. Even for those with the resources to fund a lawsuit, their perspective often changes once in litigation when they have experienced the expense and frustration that inevitably comes with being a party to a lawsuit. Principle often softens as the expense and aggravation of litigation settles in.
Due to the challenges faced in settling pre-suit HOA disputes, it is essential that the mediator have support and validation from counsel for the homeowner and the association. Attorneys are sometimes hesitant to relinquish their role as advocates. Nonetheless, it is imperative that counsel validate the mediator’s rationale in encouraging the parties to settle. A skilled attorney can remain an effective advocate while at the same time validating the mediator’s explanation of the wisdom in settling the dispute.
Inevitably, both sides begin mediation convinced they are “in the right.” It is a long path to travel emotionally from being in the right to seeing the wisdom in compromise in a few hours time.
For this reason, follow up in pre-suit HOA mediation is important because a seed may have been planted at mediation that simply needs more time to grow.
Like most disputes, the mediator must guide the parties toward a shift in paradigm in order for the case to settle. The parties must be guided to look beyond the trees to see the forest. The trees represent the dispute. The forest represents all the factors involved in litigation should the dispute not settle at mediation. Both sides come into pre-suit HOA mediation hyperfocused on the dispute. By the end of the mediation, the parties should understand that for settlement purposes, the process involved in resolving the dispute should the matter proceed to litigation is just as, if not more important, than the dispute itself.
John McCorvey draws upon 34 years of experience as a trial lawyer and 16 years as a certified mediator.