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Thank you for your question. I am not sure what you mean by an unlimited Mandatory Binding Arbitration clause. If it is unlimited then it defeats the purpose of binding arbitration.
BY unlimited I mean that no dispute can be considered outside its purview/mandate. Thus regardless of what the dispute is, the Plaintiff cannot opt to take the matter to civil court.
I see. Well, Florida law has provisions that govern Florida Condo Associations and HOAs. They want to reserve rights to file liens and do foreclosures and other remedies against homeowners that an arbitrator would not have the authority to order or enforce.
Good point. I did not mean to restrict Association statutory rights to lien and foreclose. Only to restrict all other disputes between the parties to Mandatory Binding Arbitration.
Disputes such as who is liable for a unit owner's damage from a burst pipe that is nobody's fault, or
Disputes about whether or not a particular animal qualifies as a "service animal" , or
Disputes about who is responsible for smoke going from one unit another,
The point being to eliminate the threat of a lawsuit against the Ass'n where in general all lose but the lawyers, to a situation where compromise is much more likely at minimum cost to all participants.
That's the challenge, it would be hard to draft language that identified which disputes could go through arbitration and which through courts. Arbitration though sometimes expedient still costs legal fees, arbitrator costs, and can still take time because many of the same aspects of litigation i.e. discovery and deposition can still take place.
Is there no such language already drafted somewhere?
Surely this cannot be the first time the issue arises.
Incidentally, it is my experience that the mere threat of arbitration is enough to stop predatory and frivolous lawsuits.
The Bar rule against lawyers sending intimidating and harassing letters is all too often ignored, in my experience. Short of filing Bar complaints, a difficult and time consuming process at best, ***** ***** no effective sanctions against these predatory practices.
Mandatory Binding Arbitration tends to strongly discourage such activity.
Most clauses either have one type of dispute resolution process and do not delineate between what types of dispute go through arbitration and which can go to court. In many of my contracts, I put a mandatory "mediation" provision prior to filing any lawsuit. That may be a good suggestion.
True, but not good enough. These days "mediation" is almost universally imposed by the courts before trail. A court ordered mandatory step seems to be universally regarded as a nuisance to be overcome, rather than an instrument to end conflicts.
I have no stats on successful court ordered mediations, but I have every reason to believe they are close to zero.
Therefore the best protection against lawsuits remains what might be called "limited mandatory binding arbitration" impacting all areas other than the legislative protection on dues collecting
I've had a number of successful mediations. It just depends on the parties' and how good the mediator is.