Did you know that sometimes court can be avoided?
ANSWER:
This term refers to mediation and arbitration. There are different types of each; and different sets of rules which may be applied, so be careful. This is a general discussion only!
MEDIATION:
This is a controlled settlement negotiation process. A certified mediator listens to the parties and tries to get them to come to a settlement. The mediator cannot force you to do anything (other than attend and stay for a period of time) and he cannot make decisions or findings of fact. He is strictly a facilitator. All proceedings are confidential. Statements you make at mediation cannot be used later in court proceedings. The Mediator can report only whether the case settled or not. He does this by checking a box on a form that is filed with the Court. The Mediator cannot talk to the Judge or in any way tell the Court his feelings about the parties or the issues. Mediation can be set up through the courts, privately, or through various state agencies. The Bureau of Condominiums has its own mediation rules and approved mediators around the State of Florida.
ARBITRATION:
This is a hearing or mini trial before a lawyer, retired judge, or another qualified person, or panel of persons, who make decisions on the merits of the case. That decision can be enforced by the Court.
There are two basic types of arbitration: (1) Voluntary Binding Arbitration, (2) Involuntary Non-Binding Arbitration.
There are many different arbitration organizations, each with their own set of rules. Florida law also sets out arbitration rules, which may or may not control, depending on the type of dispute. You should consult an attorney to assist you with any arbitration. Many contracts these days have arbitration clauses. It’s important to remember that such contracts generally cannot strip you of statutory remedies provided by law. For instance, a contract may provide that the parties must arbitrate their dispute and each must pay their own attorney fees and/or that there is no right of appeal. IF an applicable statute gives attorney fees to the prevailing party, you still may have that right, regardless of the contract. You might also retain the right to appeal certain aspects of the arbitrator’s ruling to the Court. However, like everything else, you must ACT to protect these rights.
Similarly, you may want to carefully examine ANY contract that says you waive rights or remedies. Although many waivers are indeed effective, certain things cannot be waived or can only be waived if done in a certain manner. Under some laws, such as the federal Interstate Land Sales Full Disclosure Act, you are assured a right of action in the courts. It’s questionable whether an arbitration provision can take away from you that right to sue.
Learn more about rescission as opposed to enforcement of your purchase and sale agreement by contacting us online or calling 239-963-1791 or toll free 866-504-8981.
These are generalizations only! Consult a Florida attorney for specific advice. Our office [239 262-2874] serves Collier and Lee counties (includes Naples, Fort Myers, Bonita Springs, Marco Island, Cape Coral, Estero) and can sometimes assist in other geographic areas. March 2008.