• Arbitration - Time Sensitive Disputes
  • September 29, 2010 | Author: Marilyn J. Perez-Martinez
  • Law Firm: Becker & Poliakoff, P.A. - West Palm Beach Office
  • The Florida legislature intended arbitration to operate as tool for obtaining resolution to a dispute that was both more cost effective and time efficient than traditional litigation. [§718.1255(3)]. The intent of the legislature however does not always come to fruition as arbitration decisions are not binding unless the parties fail to seek a trial de novo within 30 days of the arbitrators ruling. [§718.1255(4)(k)] Even before the resolution phase, parties may delay the progress of the arbitration by seeking discovery and conducting motion practice which can delay the final arbitration hearing. After the decision is issued, further delays can abound by a party seeking trial de novo in a judicial setting.

    Some situations cannot wait for an arbitration proceeding to conclude even though the Statute requires arbitration as condition precedent to filing suit. For example if an association is undergoing a concrete restoration project and an owner refuses to allow the contractor to inspect the unit to determine the extent of the restoration required, the appropriate course of action is to file a petition for arbitration. The problem is filing for arbitration would delay the entire project, place the association at risk of breaching the restoration contract, place the remaining units and/or common elements at risk of additional damage and so forth. In such a situation the association could file a motion to stay the arbitration. [§718.1255(4)(c) and 61B-45.011 F.A.C.] In seeking the stay, the association must provide the arbitrator with a petition that is verified (signed by a board member and not simply the attorney) and which alleges facts which would support the entry of an injunction. Upon review of the motion, the arbitrator may stay the arbitration to permit the association to obtain an injunction through traditional legal means. It is important to know that the stay is at the discretion of the arbitrator such that the motion and verified petition should succinctly set forth the emergent nature of the situation (emphasizing the harm which will result), the likelihood of success on the merits, argument that the granting of the stay would not be adverse to the public interest and further that no other remedy at law exists.

    Should the arbitrator grant the stay, the association would then file a claim for injunctive relief with the court. If the injunction is granted, the order is filed with the arbitrator and the association can then move for legal fees and costs for the arbitration. Should the injunction be denied, the prevailing party could seek to have the matter returned to the arbitrator and could seek legal fees and costs for prevailing on the injunction issue.