Written By Morgan W. Streetman
“There is nothing permanent except change.”
— Heraclitus
I believe 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) order1 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.
1 Available here (“This case is referred to summary, non-binding arbitration….”).