nonBindingArBitrAtionnowrequiredintHe13tHCirCuit
Trial & litigation Section Chair : ErinJackson , JohnsonJacksonLLC
Atnotimeinrecent memoryhaveweseen thespeedofchangein civiltrialpracticethat weseetoday .
“ There is nothing permanent except change .” — Heraclitus
Ibelieve our readers will agree that at no time in recent memory have we seen the speed of change in civil trial practice that we see today . Between COVID-19 shutdowns and restarts and the new active judicial case management , many of us find it trying to keep up with the changes . A new paradigm in alternate dispute resolution ( ADR ) is also upon us .
As presciently recognized by retired Judge Holder and Ronald Bush in their article for the Mediation & Arbitration Section last issue , nonbinding arbitration has replaced mandatory mediation in the 13th Judicial Circuit ’ s standard case management order . Of course , until the Florida Legislature decides to make a change , mediation will remain mandatory under Section 44.102 ( 2 ) of the Florida Statutes upon request of a party in most civil cases .
Locally , the 13th Judicial Circuit decided as of late 2021 to make nonbinding arbitration mandatory under the Amended Differentiated Case Management ( DCM ) order 1 in most cases ( with exceptions for collections , foreclosure , and eminent domain ). This requirement will apply only to actions in which the new Amended DCM order is entered , but soon enough that will be most cases .
It seems the judiciary believes that the parties will benefit from an advisory opinion , rather than the less forceful input of a neutral mediator , and that the threat of attorney fees from seeking trial de novo may encourage more resolutions short of trial , whether by accepting the award or entering another settlement after the award . They may well prove correct , but it also seems that something will be lost in abandoning mediation as our primary means of alternative dispute resolution .
I cannot address every issue in this article , but several are worth mentioning . Mediation confidentiality is a powerful tool for parties to freely engage in discussions that might otherwise never occur . And self-determination engenders a certain dignity for the parties . A summary nonbinding arbitration does not offer those benefits and the nuances of evidence may also be lost in an abbreviated adjudication . Counsel will face difficult decisions about how much of their trial strategy to reveal in what may ultimately be a nonbinding proceeding .
Perhaps the area where nonbinding arbitration may prove weakest is the award of attorney ’ s fees . Florida Statutes Section 44.103 ( 6 ) permits but does not require an award of attorney fees . It is often oversimplified in the sparse literature and commentary on the topic , and there is little case law on point . We can expect appellate litigation over the award of fees in future years as more motions for trial de novo are filed , and the resulting trials find one party or another seeking post-judgment fees . The nonbinding arbitration fee statute is reasonably effective in straightforward cases , such as simple negligence claims . The statute ’ s simplicity appears to fail , however , in complex multi-party disputes with counter claims , crossclaims , and third-party claims , declaratory and injunctive relief , and other intricacies . The statute must of course be strictly-construed , and it simply does not account for common complications . Ultimately these limitations may only be corrected by the Legislature . But trial practitioners will experience firsthand the ramifications of this latest change . n
1
Available at https :// www . fljud13 . org / Portals / 0 / Forms / pdfs / genciv / AmendedDifferentiatedCaseManagement Order . pdf ? ver = 2021-11-09-110423-987 (“ This case is referred to summary , non-binding arbitration ….”).
Author : Morgan W . Streetman – Streetman Law
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