PRESUIT MEDIATION -- PROS + CONS

An Opinion By Jan Bergemann

Published September 29, 2026

Mandatory PRESUIT MEDIATION (FS 720.311) is always a hot topic and the opinion about the benefits of this provision the HOA ACT differ widely. Initially it was considered a good ida because it stopped the ambush tactics we had seen in the past. No party could any longer be served with a lawsuit without getting prior ample warning.

But as it happens usually with any good idea it was quickly abused. Some attorneys found out that it is a real good money maker, getting billing hours without losing the great source of income of a lawsuit. It has turned out that there are certain “specialized” attorneys who will make the mediator and the other party believe that they are willing to find an amicable solution to the problem only to stop mediation after a few hours and have the mediator declare an “impasse”. Great billing hours and the lawsuit still to come.

Mediation can only work if both parties approach mediation in good faith, willing to find a solution without having to face the huge expense of a lawsuit. And a good mediator can help finding the solution. But even the best mediator can’t help finding a solution to the legal problem if not both parties are willing to give a little.

But there is a real big CON: Why is there a requirement for mediation if there is really nothing to mediate? The biggest example is: Access to the official records of the association. FS 720.311(2)(a) specifically requires it! The big question: What’s there to mediate? It’s a BLACK and WHITE case. FS 720.303(4)+(5) spell out in detail how to deal with a record request and what records are so-called “public records”.

That means: Either the association allows the owner to inspect (or copy) the required records within the allotted time-frame or face the legal enforcement and the penalty as described in the statutes. It’s beyond me to understand what’s there to mediate!

You find a more detailed explanation on how PRESUIT MEDIATION works on our webpages: “CCFJ – KNOWLEDGE IS POWER”.

If you have been part of presuit mediation before, please let us know what you think about requiring mandatory presuit mediation?