Mediation Policy

I will tell you who has a good mediation policy. It's NOT a HOA. It's your local Car Sales place. If you have bought a new car lately, the contract is usually a mediation based agreement. A few years ago they started going to a forced mediation contracts including even video taping your transaction. Each one is different but if you read the fine print, it's saying you have an issue it must go to mediation first or only. So if you were to sue them, it would get kicked out of court until you mediated.

You may be able to use their paperwork as a "guide" of what to look for in having a mediation policy. Which by the way will have to added to your CC&R's by member majority vote if you decide to have one.

Are you thinking of arbitration? In arbitration both parties make their argument before a third party who renders a decision. In mediation the mediator helps the two parties come to an agreement but, even if you sign a document agreeing to mediation, no one can force you to come to an agreement.

Also, a mediation policy would not necessarily require a change in the CC&Rs, especially if it were voluntary. I'm looking for a policy more for encouraging mediation and ensuring it is done correctly when agreed to.

Why would you not put this process in your rules? Seems that if your HOA wants a policy of mediation to deal with issues, it should be documented not assumed. It's always voluntary to enter into mediation. However, if you want to make it mandatory one mediates their issues before going for a lawsuit, then I would have the documented.

You may have misunderstood me. I agree that it should be documented and it will become part of our hearing and appeals policy which is filed with the county as one of our governing documents.

The hearing and appeals policy consists of voluntary options for the membership so the CC&Rs would not be the appropriate document because it is not placing any type of restriction or rule on any property or member.

Our articles speak in very general terms about purpose and list the initial board and office address. It seems that the intent is that they almost never need to be amended.

I see the argument for putting it in the bylaws since it falls under how the association is operated.

Our HOA is allowed to fine but it does NOT have the definition of what to fine for. That is why a HOA has to form a "Fine Schedule" before they can issue fines. That schedule has to define what is a violation and rate of the fine for that offense. Each member has to have a copy and of course agree to it.

However, in our HOA we never fined nor went to court. I believe court is one of the worst options for a HOA to pursue. Instead what we could do is fix the violation and send the owner the bill. IF they did not pay that bill, then we could file a lien for that amount owed. Of course we sent them a violation letter with a time line to correct. Plus we let them know that if we hired a contractor to do the work it was our choice and price.

Otherwise we lien or foreclose for unpaid dues never sue. Lawsuits are court judgements just like a lien is a judgement. The difference being with a lien they can't sell their home till they pay up. A lawsuit they can sell their home and never be seen again. Since no owner/member is required to provide a social security number garnishing wages is much harder to pursue or report to credit. Lawsuits judgements expire at around 7 years. So one would have to renew it if still not paid. How many boards are going to remember or know what happened 7 years ago to go file or pursue?

So mediation is a good thing if one can make it work. Suing your HOA is suing yourself and your neighbors. Having mediation puts a nice little breathing room for everyone to calm down. I like it but again it needs to be properly documented and understood by all.

That's how it is in Florida for the most part. The Florida HOA statute, FS 720, mandates pre-suit mediation before any action gets to court. Have a look at section 720.311 to see how it's worded in the statute.