In short: Sellers sued their listing agent and brokerage, arguing the agent waived arbitration by refusing the mediation the listing agreement required first. The Second DCA held the arbitrator, not the court, decides whether mediation was a condition precedent and whether it was met, and that refusing to mediate while demanding arbitration is not waiver.
The Facts
Teresa Patterson and David Walter signed two identical listing agreements with a real estate agent and her brokerage, Palm Realty of Venice, to sell two duplexes. The agreements said disputes would go to mediation first and, if not resolved, to neutral binding arbitration.
A buyer cancelled the day before closing. The sellers sued, alleging the agent and brokerage refused to mediate. The agent and brokerage moved to dismiss, arguing the claims belonged in arbitration. The sellers agreed there was a valid arbitration agreement covering the claims, but argued mediation was a condition precedent and that refusing to mediate waived the right to arbitrate.
The trial court treated the motion as a motion to compel arbitration and granted it, reasoning that the clause did not require mediation to occur first, so there was no waiver. The sellers appealed this nonfinal order.
The Decision
The Second District reversed, though not because arbitration was wrong. Under the Revised Florida Arbitration Code, the arbitrator decides whether a condition precedent to arbitrability has been fulfilled, and the court held that includes deciding whether a step like mediation is a condition precedent at all. The trial court overstepped by deciding those questions itself.
The court also held that refusing to perform a condition precedent is not waiver when the refusing party insists on arbitration. Demanding arbitration, even too early, is consistent with the right to arbitrate, and a failure to perform a curable condition like mediation can still be fixed. The case was remanded for an order compelling arbitration of the claims and of the condition-precedent question. One judge concurred specially to distance herself from the majority’s criticism of an earlier Second District case.
The Law
section 682.02(2) gives the court the job of deciding whether an agreement to arbitrate exists and whether a dispute falls within it. Subsection (3) gives the arbitrator the job of deciding whether a condition precedent to arbitrability has been fulfilled and whether the contract containing the arbitration clause is enforceable. Motions to compel arbitration are handled summarily under section 682.03.
Waiver of arbitration usually requires conduct inconsistent with the right to arbitrate, such as litigating the merits in court. Florida Realtor listing forms commonly include mediation-then-arbitration clauses, so this ruling matters for sellers, buyers and brokers.
Current law (2026): Section 682.02 has not been amended since the 2013 Revised Florida Arbitration Code (ch. 2013-232); 2026 text matches what the court applied.
Lessons
- If your listing or purchase agreement has a mediate-then-arbitrate clause, expect the dispute to end up before an arbitrator, not a judge.
- Arguing the other side skipped mediation will not usually get you into court; that argument goes to the arbitrator.
- Waiver of arbitration generally requires acting inconsistently with arbitration, such as litigating the merits.
- Read the dispute clause before you sign a listing agreement. It decides where and how you can sue your agent.
Source: Patterson v. Melman, No. 2D2023-1388 — Fla. 2d DCA (September 13, 2024).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Real Estate Contract Dispute | Patterson & Walter v. Clarke, 2D23-1388
Go Deeper
- A Contract Remedy That Wasn't Exclusive: Specific Performance Survives (Regents Park v. KAI)
- Buyer's Agents, Commissions, and Dual Agency in Florida After the NAR Settlement
- What Happens at a Florida Real Estate Closing: Costs, Liens, and Whether You Need a Lawyer
Frequently Asked Questions
Can I sue my real estate agent in court if our agreement has an arbitration clause?
Usually not, if the claims fall within a valid arbitration clause. The court will compel arbitration. Under section 682.02, the court decides only whether an arbitration agreement exists and covers the dispute; most other threshold questions, including conditions precedent, go to the arbitrator.
Does refusing to mediate waive arbitration in Florida?
Not when the party refusing mediation is insisting on arbitration. In Patterson v. Melman, the Second DCA held that demanding arbitration, even prematurely, is consistent with the right to arbitrate, and a missed mediation can be cured, so it is not an irrevocable waiver.
Who decides whether a condition precedent to arbitration was met?
The arbitrator. Section 682.02(3) says so, and the Second DCA held that the arbitrator also decides whether a step like mediation is a condition precedent in the first place. The trial court’s role is limited to whether an agreement exists and covers the dispute.
What is a mediation-then-arbitration clause?
It is a contract term requiring the parties to try mediation first and, if that fails, submit the dispute to binding arbitration instead of court. These clauses are common in Florida real estate listing agreements and some purchase contracts. Binding arbitration has very limited appeal rights.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, contracts, closings and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
