Pre-suit dispute resolution in Florida condominium law has been mandatory in some form since 1991, but the mechanics have evolved significantly. The 2021 legislative amendments to Fla. Stat. § 718.1255 restructured the alternative dispute resolution framework, giving parties a genuine choice between nonbinding arbitration and pre-suit mediation. Practitioners who fail to navigate this framework correctly face dismissal of their petition or complaint at the threshold. Understanding what the statute requires—and what it does not—is essential to any condominium dispute practice in Florida.
I. Historical Context: From Mandatory Arbitration to Parallel Tracks
The Pre-2021 Framework
Florida's mandatory condominium arbitration scheme dates to 1991, when the Legislature added § 718.1255 to the Condominium Act. The original scheme required parties to petition the Division of Florida Condominiums, Timeshares, and Mobile Homes (the "Division") of the Department of Business and Professional Regulation (DBPR) for nonbinding arbitration before filing in circuit court. Mediation was an optional process—a party could request that the arbitrator refer the case to mediation, but mediation was voluntary, not a standalone alternative to arbitration.
The pre-2021 text described arbitration as "mandatory" and mediation as "voluntary." This structure meant that parties who wanted to resolve their dispute through mediation first had to initiate the arbitration process, then request a referral, creating an additional procedural layer.
The 2021 Restructuring
Effective July 1, 2021, the Legislature amended § 718.1255 to eliminate these labels and restructure the choice. The amended § 718.1255(4)(a) now provides that before filing court litigation, a party to a covered dispute "shall either petition the division for nonbinding arbitration or initiate presuit mediation as provided in subsection (5)." The word "mandatory" was removed from nonbinding arbitration; the word "voluntary" was removed from mediation.
The practical effect: parties now choose between two equivalent pre-suit tracks. They may petition for Division arbitration (with a $50 filing fee) or initiate pre-suit mediation pursuant to the procedures in Fla. Stat. § 720.311, incorporated by reference into § 718.1255(5). Election and recall disputes are carved out from the mediation track and must be arbitrated by the Division or litigated in court.
II. Scope: What Qualifies as a "Dispute" Under § 718.1255
Covered Disputes
Section 718.1255(1) defines "dispute" for purposes of the statute as any disagreement between two or more parties involving:
- (a)(1) The authority of the board of directors to require any owner to take or not take any action involving the owner's unit or its appurtenances;
- (a)(2) The authority of the board to alter or add to a common area or element;
- (b) The failure of the governing body, when required by the chapter or association documents, to (1) properly conduct elections, (2) give adequate notice of meetings, (3) properly conduct meetings, or (4) allow inspection of books and records;
- (c) A plan of termination pursuant to § 718.117.
Excluded Disputes: The Carve-Outs
The definitional provision is as important for what it excludes as for what it includes. The statute expressly provides that "dispute" does not include disagreements that primarily involve:
- Title to any unit or common element
- The interpretation or enforcement of any warranty
- The levy of a fee or assessment, or the collection of an assessment levied against a party
- The eviction or other removal of a tenant from a unit
- Alleged breaches of fiduciary duty by one or more directors
- Claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property
These exclusions have significant practical consequence. Assessment collection disputes—the bread-and-butter of most condominium association enforcement practices—do not require pre-suit mediation or arbitration under § 718.1255. Breach of fiduciary duty claims, damage claims, and warranty claims similarly proceed directly to circuit court without the pre-suit step.
The § 720.311 mediation procedures incorporated by reference into § 718.1255(5) add one additional category to the pre-suit mediation universe: "disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association" are subject to pre-suit mediation under § 720.311(2)(a). Because § 718.1255(5) references § 720.311 procedures, these additional dispute categories are also subject to the pre-suit mediation requirement in the condominium context.
III. Pre-Suit Notice Requirements
Both tracks—arbitration and mediation—impose pre-suit notice obligations that are conditions precedent to any filing.
Arbitration Track Prerequisites
Section 718.1255(4)(b) requires that the petition for arbitration include proof that the petitioner gave each respondent:
- Advance written notice of the specific nature of the dispute;
- A demand for relief, and a reasonable opportunity to comply or provide the relief; and
- Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution.
Failure to include proof of compliance with these prerequisites "requires dismissal of the petition without prejudice." This is a hard consequence, not a discretionary one.
Mediation Track Prerequisites
Under § 720.311(2)(a)'s procedures (incorporated into § 718.1255(5)), the aggrieved party initiates pre-suit mediation by serving a written demand on the responding party in the statutory form. The mediation conference must be held within 90 days of the demand, unless extended by mutual written agreement. The parties share costs equally, including the mediator's fee.
A party who fails to respond to the mediation demand, fails to agree on a mediator, fails to pay fees within the mediator's established timeframe, or fails to appear for a scheduled session is deemed to have failed or refused to participate—constituting an impasse by that party. Upon impasse or a party's failure to participate, the aggrieved party may proceed to court. Critically, a non-participating party is not entitled to recover attorney's fees even if it ultimately prevails in court.
IV. The Emergency Exception
Section 720.311(2)(a)—the pre-suit mediation provision incorporated into § 718.1255(5)—expressly provides that where "emergency relief is required, a motion for temporary injunctive relief may be filed with the court without first complying with the presuit mediation requirements." After any emergency or temporary relief issues are resolved, the court "may either refer the parties to a mediation program administered by the courts or require mediation" under the § 720.311 process.
This carve-out is essential to preserve the ability to obtain emergency relief (a TRO or preliminary injunction) in time-sensitive disputes. The Fla. R. Civ. P. 1.610 requirements for temporary injunctions apply; the pre-suit mediation requirement does not operate as a bar to emergency court access.
V. Arbitration Procedure and the Trial De Novo
The $50 Filing Fee and Division Jurisdiction
A petition for Division arbitration costs $50 and is filed with the Division's arbitration program. The Division employs full-time attorney arbitrators and certifies outside attorneys to conduct hearings.
The Arbitration Decision: Binding or Nonbinding
An arbitration decision is binding only if all parties agree in writing filed in arbitration. If no such agreement exists, the decision is nonbinding. Under § 718.1255(4)(k), the arbitration decision is rendered within 30 days after the hearing. A nonbinding decision becomes final—and enforceable as a final agency order—if a complaint for trial de novo is not filed in the circuit court where the condominium is located within 30 days.
The trial de novo mechanism is the critical feature that preserves the parties' access to court under Florida's constitutional jury trial right. Either party who is dissatisfied with the nonbinding arbitration decision may file in circuit court within 30 days. The standard in that circuit court proceeding is de novo—the arbitration decision carries no precedential or evidentiary weight.
Fee Recovery in Subsequent Litigation
Section 718.1255(4)(h) provides that parties may recover costs and attorney's fees incurred in arbitration and mediation proceedings as part of the costs recoverable by the prevailing party in subsequent litigation. This encourages parties to engage reasonably in the pre-suit process because the fees are ultimately at risk if they lose the underlying dispute in court.
VI. Election and Recall Disputes: The Mandatory Arbitration Channel
Election and recall disputes under the Condominium Act are the most significant category excluded from pre-suit mediation. These disputes must be arbitrated by the Division or filed in court—the mediation alternative is not available. Practitioners handling contested condominium elections or board recall campaigns should go directly to Division arbitration or circuit court without attempting to invoke § 718.1255(5)'s pre-suit mediation option.
VII. Practice Notes
For Unit Owners:
- Before filing any court action based on a board authority or meeting/records dispute, confirm whether the dispute falls within § 718.1255(1)'s "dispute" definition. Filing in court without exhausting the pre-suit requirement (arbitration or mediation) will result in dismissal.
- The choice between arbitration and mediation is strategic. Mediation may be faster and cheaper for disputes where the parties have a continuing relationship (e.g., an ongoing records access dispute) or where a negotiated solution is achievable. Arbitration is preferable where the owner wants a final decision with enforceability if not challenged by trial de novo.
- Serve the pre-suit notice or mediation demand by certified mail. Proof of service is required.
For Associations:
- Assessment collection is the most common condominium dispute, and it is expressly excluded from the pre-suit requirement. Proceed directly to circuit court.
- When a unit owner files a § 718.1255 arbitration petition, respond within the Division's prescribed timeframe. Failure to respond appropriately can result in a default award.
- For board authority or governance disputes, consider engaging in the pre-suit process in good faith. Under § 720.311(2)(a), a party that fails to participate in mediation is barred from recovering attorney's fees even if it prevails in court.
Statute of Limitations Tolling: Under § 720.311(1) (incorporated by reference), the filing of a petition for arbitration or the serving of a demand for pre-suit mediation tolls the applicable statute of limitations. Practitioners advising clients whose limitations periods are running close should initiate the pre-suit process immediately.
VIII. Open Questions
The post-2021 framework has generated questions about which § 720.311(2)(a) dispute categories are "imported" into the § 718.1255(5) condominium context, and which remain limited to the HOA context. The analysis in Pavese Law's practice guidance (2022) addresses this, concluding that the "dispute" definition of § 718.1255(1) remains the controlling threshold—§ 718.1255(5) merely adds mediation as a vehicle for disputes that already satisfy that definition.
A second unresolved question is whether the mandatory arbitration/mediation prerequisite can be waived by conduct. Courts have generally required express compliance; waiver arguments have had limited success.
Closing
Florida's § 718.1255 framework is a model of well-intentioned complexity. The 2021 restructuring rationalized the system by giving parties a genuine choice between arbitration and mediation, but the price of that choice is careful navigation of prerequisites, definitional carve-outs, and the trial de novo window. The practitioner who treats the pre-suit requirements as a procedural formality will find the case dismissed; the practitioner who understands them as a strategic opportunity—to obtain a favorable nonbinding ruling or negotiate a durable settlement—will serve clients far better.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.