The Standard FAR/BAR Contract requires that the parties attempt to resolve disputes through mediation before a lawsuit can be filed. In the recent case of Pesantes v. Kelley, 2025 WL 611399 (Fla 3DCA 2025), the Florida Third District Court of appeal denied the Seller’s right to attorney’s fees because of the failure of the parties to comply with the pre-suit mediation requirement contained in the real estate contract. In Pesantes, the Buyer filed suit for failure to disclose latent defects and later dismissed that suit. The Seller moved for attorney’s fees under the contract. The appellate court upheld the trial court’s order finding that since the Buyer’s lawsuit was not litigation permitted by the contract, attorney’s fees were not recoverable. The moral of the story is, mediate before filing suit (or in this case, move to dismiss for failure to mediate) before spending money on the case.

 

Rod B. Neuman is a Florida Supreme Court Certified Circuit Court Mediator Certified Mediator (also admitted in the United States District Court, Middle District of Florida) and offers these observations based upon his experiences mediating cases throughout the State of Florida.