Presuit Mediation

Started by JamesB15 • 3 replies • 1651 views

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JamesB15 (Florida)
Posts: 87

Posted:

I have agreed to presuit madiation for a covenant violation. The leaders of the BOD suit are now gone. The VP and President were not reelected along with a board member. Another board member will resign at the next meeting. I was told by one of the remaining members that the association is using the mediator to try to get an agreement and had not intended to go past mediation. We could have done that for free had they called or written us before they filed the suit. My question is if and when we don't agree and they don't want to lose their lawsuit and don't file, am I free to file for my fees? Should I advise them at the mediation that I want reinbursed for my costs or I will file? If I file against the board for my money do we have to go to this useless mediation again? Thanks for any help you can give me.

TimB4 (Tennessee)
Posts: 21,047

Posted:

James,

Since the Board has changed since the alleged violation, you might ask to meet with the Board prior to mediation to see if a deal can be worked out. If not, you can still go to mediation and, if desired, onto court.

Every State has different rules about who pays for what. You will need to check with your attorney about that.

You may certainly ask for costs of the defense in mediation. I'm sure that the Association is asking for costs of the enforcement. People tend to become combative when backed into a corner. Demanding reimbursement of your defense costs or you will take them to court is certainly something you can do. However, as the saying goes, you get more flies with honey then with vinegar. Sometimes it's best if each side just pays for their own expenses. If you don't agree to something in arbitration, you can always counter sue when it goes to court. Every State is different on timelines for filing a counter suit. Therefore, you need to consult with a local attorney.

You should go into mediation with the same preparation you would use when you go to court. Have everything organized so it can be easily found.

JamesB15 (Florida)
Posts: 87

Posted:

I understand your point and agree. It is crazy though that board members say nothing to you about a perceived violation and the sue you 5 months later. I then need to spend a couple thousand on a case that they never intended to arbitrate. The application they gave me clearly said they had 10 days to contact me up or down and if I did not hear from them I could consider it approved. They then leave the board and are no longer responsible.

TimB4 (Tennessee)
Posts: 21,047

Posted:

Ahh. Now I understand your issue.

For you to have a 100% win, you will have to prove that the application was received on a specific date. If you don't have a signed receipt or an e-mail stating that the Association received the request it becomes a case of we said - they said and will boil down on who is believed more.

Good luck and keep us posted.

Tim

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