Roughly 42% of Florida residents live in homeowners’ associations (HOAs). While HOAs, or community associations, offer a host of benefits to the residents that live there, they are frequently involved in disputes.

Disputes are so common in fact that Florida law provides that an HOA or homeowner involved in a dispute must mediate the issue before going to court. See Sec. 718.510, Florida Statutes (2022). This provision means that community association board members will likely be involved in a mediation, often for the first time, at some point.

Navigating mediation can be confusing and intimidating for those who are unfamiliar with the process. Whether it involves a disagreement with an owner over covenants and restrictions or larger defect claims, it is important for the parties involved to understand the preparation, process and purpose surrounding mediation. As a mediator of community association disputes (and other types of cases), here’s a closer look at what parties, and their attorneys, should keep in mind when mediating a community association dispute.
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Mediation, Defined

Mediation is a process whereby a neutral third person (the mediator) acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal process with the goal of helping parties reach a voluntary agreement that settles their dispute.

While mediation is often confused with arbitration, the two methods of resolving disputes are different. Arbitration involves parties submitting a dispute to a decisionmaker (i.e., the arbitrator) who in turn renders a decision based upon the presented facts. Unlike arbitration, the decision-making authority in mediation rests with the parties. The role of the mediator is to assist the parties in exploring issues and settlement possibilities.
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Preparing for Mediation

The first step to successful mediation involves preparation by the attorneys and their clients. Attorneys and their clients should engage in a risk assessment of the case, considering the “best-case” and “worst-case” scenarios. An up-front discussion as to the client’s risk tolerance and potential exposure will help address client expectations for mediation. There is a correlation between lawyer preparedness and positive outcomes at mediation. Before coming to mediation, lawyers should begin to explore resolution alternatives with their clients, whether you’re representing an association or a homeowner.

As a mediator, I always encourage the attorneys to prepare a mediation statement. This is a confidential document that a party presents to the mediator prior to mediation. The purpose of this statement is to provide background information and arguments in support of a party’s position. From my perspective as a mediator, there is no disadvantage to educating your opponent as to key legal or factual arguments in the case through the mediation statement. Thus, parties should also consider providing their mediation statements to opposing counsel as well as to the mediator

Why show your cards? Mediation is like an iceberg. Just like an iceberg, much of the process is “below water” and should be handled before the actual mediation session. The tip of the iceberg is the mediation session itself. Having parties go into a mediation session “cold” offers no benefit to any of the participants or the mediator. Valuable time gets wasted with arguments that should have been offered before the mediation session. This is the benefit of a mediation statement that is served upon the other side before mediation. While, as a mediator, I appreciate parties providing me with their statements, I find there is an invaluable opportunity lost when the statements are not provided to the other side as well.

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The Day of the Mediation

The actual mediation session starts with having the right mindset. Remember, mediation is negotiation. This is not about winning or losing. The goal is to obtain an acceptable settlement that is reasonable when compared to the probable outcomes and risks associated with an adjudicated decision by a judge, jury or arbitrator. Understand that being “content” (i.e., somewhere between the spectrums of feeling that you “won” or “lost”) may be an acceptable achievement. Wins and losses are for trials and arbitrations. Rarely do participants truly feel they won after being subjected to a full trial or binding arbitration.

There is a general procedure for mediations. They typically start with a joint session wherein all parties and attorneys are in the same room (whether in person or through remote access platforms such as Zoom). The attorneys should prepare an effective position of the case to be offered during this joint mediation session. The joint mediation session can be the opportunity to show the other side the strengths of your case and the weaknesses in their case. After giving opening comments to the mediator and to each other, the parties then go to separate rooms, referred to as the caucus, or breakout, rooms.

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Mediating Virtually Through Zoom

Zoom, or virtual, mediation is conducted the same way as in-person mediation aside from the fact that the parties are remote. The mediator will preassign the parties to breakout rooms. Once the mediator lets the parties into mediation, they simply click on the link for their breakout rooms. This allows the mediator to separate participants into virtual rooms, which isolates the parties and permits them to privately discuss matters.

These remote mediations offer the ease and flexibility of not having to appear in person. However, treat Zoom mediation as if you were there in person. Remind your clients to check their background screens before logging into mediation. You do not want any surprises with a distasteful background screen. Also remind your clients to check their settings and to mute their Zoom connection unless they are speaking.

Even though it is via Zoom, your clients must be committed to participating in the mediation and not multitasking on unrelated tasks. Mediation will fail when parties lack the necessary commitment to attend and engage in mediation. The mediation participants must realize that they are in mediation regardless of whether they are appearing in person at the mediator’s office or from their living room. This is not the time to cook in the kitchen or perform other household tasks while on the Zoom mediation. Explain to your clients that they cannot record the proceedings even though it is conducted remotely. Mediation must remain confidential.

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Understanding the Role of Counsel at Mediation

Throughout the mediation process, the parties must also understand that the attorneys’ roles in mediation will differ from their role in litigation. How a lawyer performs at processes mediation will likely be different from how the lawyer advocates for the association during an arbitration or trial. It is important for the association representatives to understand these differing roles. Otherwise, association representatives may incorrectly perceive the lawyer as being too passive or “weak.”

In summary, attorneys should ensure that the association members or homeowners they represent recognize that certain outcomes that cannot be obtained through a trial or arbitration can be achieved through mediation. Thorough preparation, an understanding of the process, and an appreciation of the purpose of mediation sets the stage for a successful resolution.

Bryan Rendzio is a former circuit court judge for the Seventh Judicial Circuit of Florida. He is Board Certified in Construction Law by the Florida Bar, and now serves as a full-time neutral at Miles Mediation & Arbitration. He mediates in-person and virtual mediations nationwide.