Florida law requires most community association disputes to pass through an alternative process before anyone files a lawsuit. For condominiums and cooperatives, section 718.1255 requires a party to a defined "dispute" to either petition the Division for nonbinding arbitration or initiate presuit mediation; election and recall disputes go to Division arbitration. For homeowners associations, section 720.311 requires a statutory presuit mediation demand before suit over covenant enforcement, use of property, amendments, meetings, or records. Skipping the step results in dismissal of the lawsuit and, often, a fee award to the other side. Understanding which process applies, how to start it, and what it costs is the first legal decision in nearly every association dispute.
Condominiums and cooperatives: what is a "dispute"
Section 718.1255 defines a dispute as a disagreement between two or more parties that involves:
- the authority of the board, under the statute or the documents, to require an owner to take or not take any action involving the unit or its appurtenances, or to alter or add to a common area or element;
- the failure of the association, when required by the statute or documents, to properly conduct elections, give adequate notice of meetings, properly conduct meetings, or allow inspection of books and records; or
- a plan of termination.
The definition excludes disagreements that primarily involve title to a unit or common element, the interpretation or enforcement of a warranty, the levy or collection of a fee or assessment, the eviction or removal of a tenant, alleged breaches of fiduciary duty by directors, and claims for damages to a unit based on the association's alleged failure to maintain the common elements. Those go directly to court. The practical effect is that most owner-versus-board disagreements about rules, alterations, records, meetings, and elections are disputes, and most money claims are not.
The condominium choice: arbitration or mediation
For a dispute other than an election or recall dispute, the party seeking relief chooses. Division arbitration is a formal proceeding before a state arbitrator: the petitioner must first give the other party written notice of the dispute, a demand for relief, a reasonable opportunity to comply, and notice of intent to arbitrate; the petition and response are filed with the Division; the arbitrator may decide on the papers or after an evidentiary hearing; and the final order is binding unless a party files a complaint for trial de novo in circuit court within 30 days. The prevailing party is entitled to attorney's fees and costs. Division arbitration decisions are published and form the largest body of guidance on recurring condominium questions.
Presuit mediation under the homeowners association procedure is the alternative, and since 2021 it has been available for condominium disputes. It is faster and less formal, and it produces a confidential settlement rather than a published order. Boards tend to choose arbitration when they want a ruling that will guide future conduct (a records dispute, an election challenge) and mediation when they want a resolution with a particular owner.
Election and recall disputes are not subject to the arbitration-or-mediation choice. Under section 718.1255(6) they must be arbitrated by the Division or filed in a court of competent jurisdiction, and the statute requires them to be handled on an expedited basis; recall arbitrations in particular are often decided within weeks.
Homeowners associations: presuit mediation under section 720.311
Chapter 720 does not use Division arbitration except for election and recall disputes, which may be arbitrated by the Division or filed in court. For every other listed dispute, the aggrieved party, whether the association or an owner, must serve a presuit mediation demand before filing suit. The listed disputes are those between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the governing documents, disputes regarding meetings of the board and committees, membership meetings other than election meetings, and access to official records. The requirement does not apply to the collection of assessments, fines, or other financial obligations, or to actions to enforce a prior mediation settlement.
The demand follows the form set out in the statute. It describes the dispute, offers a list of certified mediators from which the recipient may choose, and warns of the consequences of ignoring it. The recipient has 20 days to respond by selecting a mediator or proposing others. Mediation is to be completed within 90 days unless extended. The parties share the mediator's fee equally unless they agree otherwise, and each pays its own attorney. If the recipient fails to respond or refuses to participate, the demanding party may proceed to court, and the statute allows the court to award the demanding party its fees and costs incurred because of the refusal. The statute of limitations is tolled while the process runs.
What happens at mediation
Mediation is a settlement conference conducted by a neutral mediator, usually in a single session of two to four hours, in person or by video. Each side presents its position; the mediator meets privately with each; and the mediator works toward a written agreement. Everything said is confidential under Florida's mediation privilege and cannot be used in later litigation. The board's representative must have settlement authority within parameters the board set at a noticed meeting, and counsel typically attends. If the parties settle, the agreement is enforceable as a contract, and an action to enforce it is exempt from further presuit requirements. If they do not, the mediator declares an impasse and either party may file suit.
The comparison
| Condominium / cooperative dispute | HOA dispute | |
|---|---|---|
| Governing section | § 718.1255 / § 719.1255 | § 720.311 |
| Covered matters | Board authority over units and common elements; elections, notice, meetings, records; termination plans | Covenant enforcement and use; amendments; board, committee and non-election membership meetings; records |
| Excluded | Title, warranties, assessments and collection, evictions, fiduciary duty, failure-to-maintain damages | Assessment, fine and financial collection; enforcement of prior mediation settlements |
| Process | Petitioner chooses Division arbitration or presuit mediation | Presuit mediation demand in statutory form |
| Elections and recalls | Division arbitration or court (expedited) | Division arbitration or court |
| Response time | Set by Division rules after petition | 20 days to respond to demand |
| Outcome | Arbitrator's final order; trial de novo within 30 days | Settlement agreement or impasse, then suit |
| Fees | Prevailing party recovers fees and costs in arbitration | Mediation costs shared; prevailing party fees in ensuing litigation; refusal to mediate shifts fees |
| Typical duration | About 9 months for arbitration | 60–90 days for mediation |
Practical guidance for boards
- Send the demand letter first. In both systems the first step is a written notice describing the dispute, what the association wants, and the deadline. Many disputes end there.
- Decide at a noticed meeting. Authorizing arbitration or mediation, setting settlement authority, and approving a settlement are board decisions. Discussions with counsel about the dispute may be held in closed session.
- Choose the forum deliberately. Arbitration produces precedent and a fee award; mediation produces a confidential deal. The right choice depends on whether the association needs a rule for the community or a resolution with one owner.
- Do not ignore an owner's demand. A board that fails to respond to a presuit mediation demand within 20 days forfeits its best defense to the owner's fee claim and hands the owner a procedural win.
- Budget for it. Mediator fees typically run several hundred dollars per hour, split; arbitration filing fees are modest; counsel's time is the main cost. Both are far cheaper than the litigation they replace.
Frequently Asked Questions About Arbitration and Mediation
Do we have to mediate before suing an owner who has not paid assessments?
No. Assessment collection is excluded from both § 718.1255 and § 720.311. The association proceeds through the statutory collection notices, lien, and foreclosure without arbitration or mediation. Our collection notices guide covers that sequence.
Is Division arbitration binding?
The arbitrator's final order is binding unless a party files a complaint for trial de novo in circuit court within 30 days. If no one does, the order may be enforced by the court. In practice most arbitration orders are not appealed, and the fee award to the prevailing party discourages trial de novo filings without merit.
What if the owner refuses to mediate?
Under Chapter 720, a party who fails to respond to a proper demand within 20 days or refuses to participate allows the demanding party to proceed to court, and the court may award the demanding party the fees and costs incurred because of the refusal. Under Chapter 718, refusal to participate in presuit mediation similarly clears the way to arbitration or court and affects fee entitlement.
Can the association be the one demanding mediation?
Yes. The statutes apply to the aggrieved party, and associations enforcing covenants serve presuit mediation demands routinely. The demand is the last step in the enforcement sequence before suit, and it often produces compliance without a mediation session.
Are mediation discussions confidential?
Yes. Florida's Mediation Confidentiality and Privilege Act protects communications made during mediation from disclosure and use in later proceedings, with narrow exceptions. Settlement agreements are not confidential unless the parties agree, and an association's settlement is an official record.
How long does the whole process take?
Presuit mediation under Chapter 720 typically concludes within 60 to 90 days of the demand. Division arbitration of a rules or records dispute typically takes about nine months; election and recall arbitrations are handled on an expedited basis and are usually decided much faster. If litigation follows, a contested circuit court case commonly takes about a year to trial.
Contact Hamilton Mikes
Hamilton Mikes represents associations in Division arbitration and presuit mediation throughout Southwest Florida and prepares the demands that start both. Call 239-594-7227 or visit our Litigation and Alternative Dispute Resolution page.
Statutes and authorities referenced
- § 718.1255, Fla. Stat. (definition of dispute; mandatory nonbinding arbitration or presuit mediation; procedure; trial de novo; attorney's fees)
- § 719.1255, Fla. Stat. (cooperative arbitration)
- § 720.311, Fla. Stat. (HOA dispute resolution: Division arbitration of election and recall disputes; presuit mediation; statutory demand form; fees and costs; tolling)
- Fla. Admin. Code ch. 61B-45 and 61B-50, Fla. Stat. (Division arbitration rules; election and recall arbitration)
- § 44.401–44.406, Fla. Stat. (Mediation Confidentiality and Privilege Act)
- § 718.303(1) and § 720.305(1), Fla. Stat. (prevailing party attorney's fees)