Mediation, Arbitration, and Voluntary Trial Resolution

Question 1

What is “mediation”?

Answer 1

Mediation is a process where a neutral third party (the mediator) encourages and facilitates the resolution of a dispute without prescribing what the resolution should be.

• The process is informal and nonadversarial
• The object is helping the disputing parties reach a mutually acceptable agreement

Question 2

What is “arbitration”?

Answer 2

Arbitration is a process where a neutral arbitrator (or a panel of three with one assigned as the chief arbitrator) listens to the facts and arguments presented by the parties and renders a decision that may be binding or nonbinding.

Question 3

What is “voluntary trial resolution”?

Answer 3

A process where one neutral trial resolution judge listens to the facts and arguments presented by the parties and renders a decision that is enforceable in the circuit court, and may be appealed to the appellate court.

Question 4

When:

1. Does the first mediation/arbitration conference need to be held?
2. Can parties move to dispense with mediation/arbitration?
3. Does the court need to notify parties of the date, time and place of the conference?

Answer 4

• The first mediation/arbitration conference must be held within 60 days of the court order.
• Parties may move to dispense with mediation/arbitration within 15 days of the referral order on the basis that there was previous mediation/arbitration OR that the issue is one of law only, or for other good cause
• Within 15 days after the court has designated a mediator or arbitrator, the court or its designee MUST notify the parties of the date, time, and place of the conference or hearing

Question 5

What cases can be mediated?

Answer 5

The presiding judge may order, or the parties may stipulate to, referral of most contested civil matters or selected issues to mediation or arbitration.

Question 6

Describe the mediation procedure and who must be present.

Answer 6

• The mediator controls ALL aspects of the mediation, but counsel may communicate privately with their clients
• The mediator may also meet privately with any party or counsel
• In the discretion of the mediator and IF THE PARTIES AGREE, mediation may proceed without counsel present

A party need not personally attend the mediation if the following persons are present:

1. The party’s attorney;
2. A representative of the party who has full authority to settle without further consultation;
3. A representative of the party’s insurance carrier (if any) who has full authority to settle without consultation, up to the amount of P’s last demand or policy limits, whichever is less

Question 7

When MUST mediation be completed?

Answer 7

Mediation MUST be completed within 45 days of the first mediation conference, unless extended by the court or by stipulation.

Question 8

Can mediation suspend discovery?

Answer 8

Possibly. Mediation does NOT suspend discovery unless stipulated by the parties or court order.

Question 9

Can sanctions be imposed for failure to appear at the mediation conference?

Answer 9

YES! On motion, sanctions will be imposed for failure to appear for the mediation conference without good cause.

Question 10

What must the mediator do if no agreement can be reached during mediation?

Answer 10

The mediator MUST report to the court if no agreement can be reached.

Question 11

What must happen if an agreement IS reached in mediation?

Answer 11

If an agreement is reached, it MUST be reduced to writing, signed, and filed OR the parties must file a joint dismissal.

Question 12

Arbitrator and Mediator Qualifications

Answer 12

All mediators must be certified by the FSC or may be allowed to act as mediators if the parties and the court agree.

ALL arbitrators must be Florida Bar members, unless agreed to by the parties, and MUST attend four hours of FSC-approved training. The chief arbitrator MUST have been a Florida Bar member for at least five years.

Question 13

What are the two types of arbitration?

Answer 13

1. Nonbinding arbitration; and
2. Voluntary binding arbitration

In both cases, the arbitrator (or chief arbitrator) has the power to administer oaths, and at the request of any party, to issue subpoenas.

• Where there is only one arbitrator, that person is the chief arbitrator

Question 14

Describe nonbinding arbitration procedure.

Answer 14

Nonbinding arbitration hearings are conducted informally and the presentation of testimony is kept to a minimum.

• The matters are presented primarily through statements and arguments of counsel
• The chief judge of each judicial circuit may establish additional procedures for the conduct of nonbinding arbitration hearings as long as they do not conflict with the FRCP

Question 15

What happens if a party fails to attend nonbinding arbitration?

Answer 15

The arbitration may still proceed, and a decision may still be made.

Question 16

When must nonbinding arbitration be completed?

Answer 16

Arbitration must be completed within 30 days of the first arbitration hearing unless extended by court order…the court MAY NOT extend the arbitration proceedings beyond 60 days from the day of the first arbitration hearing.

Question 17

When must the arbitrator in nonbinding arbitration render a decision?

Answer 17

Within 10 days of adjournment of the final arbitration hearing, the arbitrator MUST render a written decision to the parties and file it with the clerk of the court.

Question 18

When will an arbitrator’s findings be final in nonbinding arbitration?

Answer 18

The decision will become final unless a request for a trial de novo is made within 20 days.

• If a motion for trial is filed by any party, any party having a third-party claim at issue at the time of arbitration may file a motion for trial within 10 days of service of the first motion for trial

Question 19

Describe the procedure of voluntary binding arbitration.

Answer 19

Two or more opposing parties may agree to voluntary binding arbitration. The parties may, by written agreement, establish the hearing procedures. In the absence of such an agreement, the court must establish the hearing procedures.

Question 20

When must the arbitrator file his/her decision in voluntary binding arbitration?

Answer 20

The arbitrator(s) must serve the parties and file with the court a written decision within 10 days of final adjournment of the arbitration hearing.

Question 21

Can the decision of VBA be appealed?

Answer 21

Yes. The decision may be appealed to the circuit court within 30 days.

• If no appeal is filed, the arbitration decision will become final
• review of the decision is limited to review on the record for:
  
  • Failure of the arbitrators to comply with the rules of procedure or evidence;
  • Partiality or misconduct of an arbitrator; or
  • Violation of the United States of Florida Constitutions

Question 22

What actions are EXCLUDED from mediation/arbitration?

Answer 22

1. Bond estreatures;
2. Habeas corpus and extraordinary writs;
3. Bond validations; and
4. Civil or criminal contempt

Question 23

What is “voluntary trial resolution”?

Answer 23

Two or more opposing parties may agree; within 10 days of the request for voluntary trial resolution, the court will appoint a trial resolution judge (who must be a member of the Florida Bar in good standing for more than five years).

• Any party may enforce a final decision rendered in a voluntary trial by filing a petition for final judgment in circuit court
• Upon entry of the decision, any party may appeal to the appropriate appellate court
• Factual findings determined in a voluntary trial are NOT subject to appeal