EVICTIONS AND THE MEDIATION PROCESS

 

Often management or property manager will be ordered to attend mediation in an eviction action. Depending on the complexity of the case, the mediation could last anywhere from minutes to hours, although most will take 30-60 minutes to complete. On some occasions the mediation will be scheduled so that a court hearing will take place on the same day in the event that the mediation is unsuccessful. Usually the mediation will take place in a room located in the courthouse. Please keep in mind that if you have been ORDERED to attend the mediation by the judge in your case, then you MUST attend. If you fail to attend, the judge may and likely will enter a default against you. You should NOT treat this as a voluntary process.

 

The Basics of the Mediation

 

Mediation is a process in which a person who does not have an interest in the outcome of the case, the mediator, attempts to promote understanding between the parties to a lawsuit. The ultimate goal of the mediator is for the property manager/management and resident to resolve their differences by reaching a settlement. The mediator has no power to force the parties to settle. In most Florida Counties there is no charge for an eviction-related court ordered mediation, if the County Court has jurisdiction in the case. For cases which are filed in Circuit Court, a fee may apply. Some counties pay their mediators, while others only use volunteers. Most mediators are not manager/resident attorneys. In fact, most are not lawyers! Some mediators may have little or no experience in property management matters. You should keep that in mind, so you are not frustrated at the mediation. Being disrespectful towards a mediator can only lead to trouble for you, as you want the mediator to persuade your opponents that their case is weak. If you do not treat the mediator in a dignified manner, they may reverse the tables on you and go out of their way to portray to the other parties that your case is weak.

 

Why You Have Been Sent to Mediation

 

Judges typically order parties to mediation for a number of reasons. First, if the residents’ answer to your lawsuit raises some issues, then your case may be a candidate for mediation. Next, most judges have a very full schedule of cases and would prefer to avoid placing a trial or hearing on their docket without encouraging the parties to settle their outstanding disputes. Finally, you have been sent to mediation, because they WORK. More often than not, the mediation process does encourage settlement. Some judges may require the residents to place fully accrued rent money in the court registry as a condition of mediation. Other judges may require that some money be deposited, and some judges may ignore this requirement.

 

Benefits of the Mediation

 

For many property managers/management, the thought of losing a lawsuit can be quite stressful. A loss in court can mean long delays before your problem resident is removed, wasted legal fees and perhaps responsibility to pay the residents’ attorney’s fees. Additional time spent in court also prevents the property manager from devoting valuable time to his or her property. Energies that could be directed towards other aspects of the real estate business, marketing for example, instead must be used to deal with the problem residents. It is also comforting to know that if you settle your case, then you have retained greater control of your destiny, eliminating the uncertainty of a judicial determination. Once you leave the outcome of your case in the hands of the judge, then only one thing is almost CERTAIN: there will be a LOSER and a winner. It is usually all or nothing! It is very hard to get inside the mind of a judge, and different judges may give very different rulings when presented with essentially the same set of facts. In fairness to judges, they often do not have the authority to “split the baby” and make all parties feel good. Going to court is always a gamble, even when both the facts and law appear to be in your favor. With the proper attorney representing you, the odds should be even more in your favor, but there is ALWAYS the possibility that you may NOT win your case. Mediation can also be used to effectively keep the property manager’s/management accounts receivables in line. For example, during a resident eviction, if the residents place money in the court registry, you can obtain that money faster by settling, if the residents agree to turn that money over to you. Waiting until a hearing is scheduled if the mediation is unsuccessful can cause the property manager or management to wait weeks until the registry money can be obtained, and this assumes the judge’s ultimate ruling will be favorable regarding a disbursement to the manager. Also, while your residents who are under eviction are living in the premises, the rental delinquency amount continues to rise, which could cause a very ugly accounts receivables report. If you manage to work things out at mediation such that your residents agree to move out, then you can turn your attention to finding a paying resident instead of a waiting for a trial or hearing. Finally, if your mediation is successful, you can have “PEACE OF MIND” that your case has been resolved, and that you can move on! It cannot be overstated how stressful ongoing, contentious litigation can be, and the toll certain cases can take on one’s ability to enjoy life.

 

Action to be Taken Before the Mediation

 

It is very important to have all of your “ducks in a row” prior to your scheduled mediation. First, make sure that you are very familiar with not only your version of the dispute, but the argument made by your opponent. If it is an eviction matter which is being litigated then the property manager should bring copies of the payment ledger, lease and Three Day Notice. You should review the residents’ answer or motion sent to the court, so that you can persuade the mediator of your position and downplay the merits of your opponent’s position. Also, by reviewing the residents’ response with your attorney, you are less likely to get caught off guard at the mediation by last minute surprises. For example, if the property manager accidentally accepted payment from the residents after the eviction complaint was filed in court, and the residents noted this in their written response to the court, then you would likely be wasting your time at the mediation, since you would probably lose your case under Florida law because of a waiver problem. Maybe you did not accept payment in the above example, but somebody else in your office held on to the check for 3 weeks before sending it back to the residents placed under eviction. If the information contained within the residents’ answer turns out to be true, you may be willing to compromise more in the mediation process, since the odds of losing at trial have just increased. Make sure you know the exact location of the room number and full address of the location of the mediation. DO NOT BE LATE! Remember, if you do not appear, the judge assigned to your case may treat your non-appearance as a default and DISMISS your case. Be clear on what your settlement authority is.

 

The Mechanics of the Mediation

At the start of the mediation, the mediator will introduce himself. The party that filed the lawsuit (the plaintiff) will then be invited to verbally lay out their case. The defendant will then be given a chance to respond. After that, the mediator will likely ask both the property manager and the resident’s questions, so that they can determine the strength and weaknesses of the lawsuits. DO NOT INTERRUPT the residents or mediator when they speak. You will come across as overly emotional, and it is very disrespectful to the mediator and the process. Next, the mediator may want to caucus. This simply means that the mediator will speak in private with each party and attempt to move them closer to settlement. Now you will better understand why being prepared and respectful towards the mediator is vital to your success. It is very often at the caucus stage that the mediator will make their strongest presentation to the resident as to why the resident should settle, if the mediator believes that your case is strong. Having the mediator do this has a very profound psychological effect on the residents. In fact, since the residents understand that the mediator is unbiased, it can be devastating for them to hear that they will likely lose their case. It is a very useful strategy to utilize the “caucus”. If you see that progress is not being made at your mediation, it may be wise to suggest to the mediator that he or she caucus with the residents, if you sincerely feel that you have a strong case. Another useful strategy to keep in mind, especially if you are in a mediation regarding an eviction, is to remind the residents that by settling the case prior to a potential final judgment, the residents can protect their rental history from reflecting a final judgment. Having a final judgment of eviction on their rental history can make it extremely difficult for the residents to rent elsewhere. If you and the residents cannot come to a settlement over the amount owed, then another useful tactic is to try and convince the residents to turn in keys and VACATE, especially, if you can lease the property sooner than later. Finally, if you can reach a settlement, the mediator will have the parties sign a legally binding document, and then the judge may approve the agreement in private, or call the parties into court to verify that they understand the terms of the settlement. If monies are to be paid to you by the residents as reflected in the agreement, then you should request that the payments be made in money orders or cashier’s checks, and the settlement agreement can reflect that condition. The agreement should also state that the property manager is entitled to a final judgment of eviction should the residents fail to meet any of their obligations listed in the settlement agreement. One final word: the types of stipulation forms used at mediation can be provided by our firm prior to the mediation date. If the case can be settled at mediation, it can often be settled prior to mediation. This can really cut down on time spent away from the office and additional expenses, when all residents who signed the lease sign a stipulation in the comfort of your own office, early in the eviction process.