Arbitration

Meaning

  • In an “arbitration,” a neutral third person or panel considers the facts and arguments presented by the parties and renders a decision which may be binding or nonbinding.
    • This is unlike mediation, whereby a neutral third person acts to encourage and facilitate the resolution of a dispute, but does not render decisions.

Arbitration versus Court Proceedings

  • Advantages
    • Arbitrator(s) may have background better suited for specific issues than judge or jury;
    • Disputes resolved more quickly and efficiently than through the court system;
    • Limited discovery, so fewer discovery disputes;
    • Final hearing set at beginning of process;
    • Evidentiary rules generally do not apply, allowing a more procedurally lax forum in which to introduce evidence;
    • Less costly than litigation due to limited discovery and shortened timeframe;
    • Easier and less time-consuming to obtain orders from arbitrator than court.
  • Disadvantages
    • No automatic right to appeal; award will be binding absent grounds to vacate.

Agreement to Arbitrate

  • Because arbitration is a matter of contract, a party cannot be required to submit a dispute to arbitration in the absence of agreement to do so.
    • Except court-ordered, non-binding arbitration; see below.
  • The written agreement between the parties determines the dispute(s) to be submitted to arbitration.

Voluntary binding arbitration and voluntary trial resolution

  • Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration, or voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.   § 44.104(1), Fla. Stat.
  • Application for voluntary binding arbitration or voluntary trial resolution shall be filed and fees paid to the clerk of court as if for complaints initiating civil actions.  § 44.104(5).
  • Filing of the application for binding arbitration or voluntary trial resolution will toll the running of the applicable statutes of limitation.  § 44.104(6).
  • The arbitrators or trial resolution judge shall be compensated by the parties according to their agreement.  § 44.104(3).
  • The Florida Evidence Code applies to all proceedings under section 44.104.  § 44.104(9).
  • Pursuant to Florida Rule of Civil Procedure 1.830:
    • A voluntary binding arbitration may be appealed within 30 days, but is limited to the grounds specified in section 44.104(10); i.e.:
      • (a) Alleged failure of the arbitrators to comply with the applicable rules of procedure or evidence;
      • (b) Alleged partiality or misconduct by an arbitrator prejudicing the rights of any party;
      • (c) Whether decision reaches a result contrary to the Constitution of the United States or of the State of Florida.
    • If no timely appeal, decision referred to presiding judge to enter orders and judgments as provided under section 44.104.  Fla. R. Civ. P. 1.830(3).

Court-ordered, Nonbinding Arbitration

  • A court, pursuant to rules adopted by the Supreme Court, may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.  § 44.103 (2), Fla. Stat. Ann.
  • Pursuant to Florida Rule of Civil Procedure 1.700:
    • The presiding judge may enter an order referring all or any part of a contested civil matter to mediation or arbitration.  Fla. R. Civ. P. 1.700(a).
    • The parties to any contested civil matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral.  Fla. R. Civ. P. 1.700(a).
  • Pursuant to Florida Rule of Civil Procedure 1.820:
    • The hearing for a non-binding arbitration is conducted informally.  Presentation of testimony is kept to a minimum, and matters are presented to the arbitrator(s) primarily through the statements and arguments of counsel.
    • Following the decision, any party may file motion for trial de novo.  If timely motion for trial de novo is not filed, decision is referred to presiding judge to enter orders and judgments per section 44.103(5), Fla. Stat.
  • If motion for trial de novo is filed, then upon motion by party within 30 days after judgment, the court may award costs against party that requested trial de novo, including arbitration costs, court costs, reasonable attorney’s fees, etc., which were incurred after arbitration hearing and continuing through trial.  Such costs may be assessed if:
    • The plaintiff, having filed for a trial de novo, obtains a judgment at trial which is at least 25 percent less than the arbitration award.  § 44.103(a), Fla. Stat. Ann.
    • The defendant, having filed for a trial de novo, has a judgment entered against the defendant which is at least 25 percent more than the arbitration award.  § 44.103(b).
  • Pursuant to section 44.103(3), the arbitrator may not charge more than $1,500 per diem, unless the parties agree otherwise.

If you need an experienced arbitrator, please call our office at 561-245-2200 or email scheduling@mediationworksfl.com.

Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist, and still is one of just three attorneys to have obtained that dual certification.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA Chair-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 245-2200 or Donna@mediationworksfl.com.