FL Nonbinding Arbitration Rules Clarification

The standing Civil Rules Committee of The Florida Bar seeks to amend Florida Rule of Civil Procedure 1.820 after confusion arising from People’s Trust Ins. Co. v. Hernandez, 413 So. 3d 127 (Fla. 4th DCA 2025) where the Fourth District Court of Appeal interpreted nonbinding arbitration notice language as requiring a party to state both that it was “rejecting” the arbitration decision and that it was “requesting a trial” in the written filing. In Hernandez, while the party filed a request for trial de novo, the request did not include language that the party was “rejecting” the arbitration award. The court said the request for trial de novo did not strictly comply with Rule 1.820 (h) and was therefore ineffective. When the Civil Rules Committee last proposed amending Rule 1.820, it was not their intention to create a requirement to use “magic words” to reject an arbitration award-- it was to create a requirement that a request for trial de novo be accomplished by a written filing. Members of the committee now agree that it is duplicative and unnecessary for a party to say both that the arbitration award is being rejected and that a trial de novo is being requested. Rather, it is implicit that a request for a trial de novo is a rejection of the arbitration award. There was also a concern that article I, section 22, Florida Constitution states “[t]he right of trial by jury shall be secure to all and remain inviolate” and a procedural rule should not invade that right by creating a trap for the unwary. To address the Hernandez decision’s interpretation, Civil Rules proposes amending subdivision (h) to clarify that only a written request for trial need be filed; the filing does not have to be a “notice of rejection of the arbitration decision and request for trial.” This is now an official rules amendment petition case pending before the Florida Supreme Court found here-- https://acis.flcourts.gov/portal/court/68f021c4-6a44-4735-9a76-5360b2e8af13/case/14463DCF-4E3D-428D-B801-B5BC1DC7570A and case that brought about the need for clarification-- https://law.justia.com/cases/florida/fourth-district-court-of-appeal/2025/4d2024-3274.html

Orlando Film Premiere: Voice of the Mediation Client 1/21!

Join us at the Orange County Bar Association in Orlando on January 21, 2026 at noon for a film screening and esteemed panel with lunch included! This program is a collaboration of OCBA’s ADR Committee and the ADR Section of The Florida Bar that have come together for an engaging course on advanced mediation strategies designed for litigators, mediators, in-house counsel, and other dispute resolution professionals. Along with exploring cutting-edge techniques, we will cover essential ethical responsibilities for lawyers and mediators. Participants will also receive a link to the latest Florida Mediation Best Practices Handbook, packed with proven strategies, practical tools, ethics rules, and federal and state mediation forms to strengthen mediation performance and client outcomes. I will participate in an esteemed panel of experienced trial lawyers, a United States Magistrate Judge and veteran mediator colleagues. We will lead a dynamic discussion during breaks in the screening of “The Voice of the Client,” an eye-opening film just produced by the Florida Bar’s Alternative Dispute Resolution Section. Through powerful real-life stories, attendees will gain new perspectives on how clients experience mediation. The session is sure to spark meaningful discussions on preparation, communication, and how mediator techniques impact outcomes, helping participants elevate their mediation practice. Registration information here-- https://flabaradr.com/events/the-ocba-adr-committee-and-the-adr-section-of-the-florida-bar-presents-the-voice-of-the-client/ and direct link-- https://orangecountybar.org/events/register.aspx?id=1995577&itemid=786cc0e9-5ee8-4757-9388-b03a47a76f1c

Practice Playbook Podcast Appearance

So thrilled to be asked to join Susan Guthrie on The Practice Playbook Podcast where we talk about getting back to the basics in what we do in the face of unjustified fears like: "Is AI replacing mediators?" Dispute resolution professionals are likely asking this right now because technology is so rapidly advancing. AI tools are everywhere and virtual practice is the norm. In our conversation, we find AI is not actually replacing mediators. It doesn't replace skill, rather it is helpful to automating scheduling, helping to summarize documents and making more information instantly accessible. What remains human is the mediator’s judgment, presence and ability to guide people through uncertainty. Technology reduces friction, not responsibility. Strong mediators become more visible in this environment. Their preparation is clearer. Their instincts are sharper. Their ability to read people and manage dynamics stands out. Technology does not resolve complex cases, but can help better define them. However, lived experience and intuition are what still drive successful mediation outcomes. AI systems cannot read a room yet! No algorithm can sense hesitation, fear, or strategic posturing in real time. No tool can decide when to push, when to pause, or when silence is doing the work. Those decisions come from vast experience. They come from curiosity and instincts developed over hundreds or thousands of cases. These are not skills that can be automated. They are earned. Mediation is fundamentally a human process. It relies on judgment, trust, and the ability to guide people through uncertainty, none of which can be replaced by technology. More data does not always produce better outcomes. One challenge in today’s mediation environment is the information paradox. Parties have access to more data than ever, yet clarity is often harder to achieve. Excess documentation, poorly timed disclosures, and last-minute revelations can slow progress instead of advancing it. Discernment is perhaps one of the most valuable skills a mediator brings to the room in this age. Knowing what matters, when it matters, and how to use information strategically is not a technical function. It is a professional one. Until real AGI? Give us a listen on the first episode of the new year here-- https://bit.ly/PPP-Lawrence-Kolin

Back to Basics in 2026

In this age of AI and virtual attendance, it might be time to reflect on what works and has been working for our 3000-plus year-old profession of peacemaking. Despite the advances in tools we utilize, human nature remains unchanged and getting people to a deal is fundamentally the same. Likewise, even with all the platforms to enhance our marketability as mediators, the choice is still made by those who engage us based on trustworthiness and word of mouth. You are only as good as your last mediation some say. Working a case as a neutral is no different in our digital world when it comes down to the basics. Understanding the nub of a dispute is key and recognizing the usual cast of characters to gain rapport with them and get to the signed settlement agreement is paramount in any negotiation, whether virtual or in person. Mediators have more information available to them in this day and age, but that gut feeling from experience and the ability to stay versatile cannot be substituted with artificial intelligence. Parties also have more data than ever, but are seemingly providing less information on the way into a conference than they once did. Having to dig through a docket as a neutral to gain an understanding of the underlying case is fine, but we would still appreciate learning the parties’ positions identifying any overlap in interests from briefs or summaries which might be of better use if exchanged in advance. Saving things for trial went away long ago because there really are so few trials that if a party has a smoking gun, etc., they need to leverage it during the settlement negotiation. Confidentiality that mediation affords must be used to share information for properly evaluating cases in advance of the actual day so that proper authority can be obtained without last minute surprises. Most cases turn on risk tolerance and what a party is willing to do instead of going to court. The courts are where they lose control over the outcome. So even with the overlay of practice going into 2026 and all the coming tech glory, the essentials of getting to resolution endure.

15 Years of Orlando Mediator

This month marks fifteen years since I began writing this blog to help keep the legal community abreast of the latest goings-on in mediation, arbitration and other emerging forms of dispute resolution. This blog has been recognized as an official ABA "Blawg" by the American Bar Association, voted as a finalist for The Expert Institute Best Legal Blog in the Legal News category, as top blawgs to follow by ADR Times and a current Top 5 Dispute Resolution Blog on Feedspot.com. My first entry had to do with arbitration as a process criticized by consumer advocates and that remains true today, though it is becoming utilized by more industries in contracts and is even being employed by courts under statutory processes, like nonbinding arbitration. Some things that have changed are the remote nature of these processes, especially since Covid. These changes advanced the use of then state of the art technology like Zoom, now comfortably utilized by professionals, parties and their counsel alike. We are getting past early days of the artificial intelligence boom and looking for ways to ethically use the power of AI as a settlement tool, while maintaining the human touch that has led to deals over the past 3,000 years of this profession. My alternative dispute resolution practice has continually evolved since first becoming certified in Circuit-Civil mediation in 2001 by the Florida Supreme Court and serving as a full-time neutral since 2010. Over that time, I have helped to bring about thousands of resolutions of multi-party complex cases in state and federal trial courts. I've also facilitated post-trial settlements with appellate cases pending in Florida's 5th and 6th District Courts of Appeal which are still the only DCAs to maintain formal civil mediation programs. Courts are extremely backlogged, so as litigation costs continue to rise, early settlements make sense in regular matters. Pre-suit mediation is trending beyond statutory requirements and can be quite effective if the parties have just enough information to evaluate their positions in the potential litigation. Mediation is essential to America's courts and remains the most popular of docket-culling measures. Thanks for your readership and attention to my musings and thought leadership about all things in modern-day peacemaking.

Future of AI in ADR

For Mediation Week 2025, I will recount my observations from attending the American Arbitration Association's (AAA) Future of Dispute Resolution Conference in New York, dealing with the advent of Artificial Intelligence (AI). Taking place at Cardozo Law School in conjunction with the International Institute for Conflict Prevention and Resolution (CPR) and sponsored by the Practising Law Institute (PLI), this dynamic conference with Alternative Dispute Resolution (ADR) professionals, lawyer advocates, in-house counsel, programmers and developers explored how AI is transforming arbitration, mediation, and online dispute resolution (ODR). Legaltech innovators, institutional leaders and practitioners had quite interactive debates, a live demonstration of AAA's upcoming AI-trained construction arbitration product being launched next month (still requiring human oversight), and some real-world case studies. Humans are not being replaced, rather augmented in their skills and time management. Experience in the field cannot be simply replaced by machine, though AI's influence on dispute prevention cannot be understated. It will impact process, integrity, ethics and certainly case resolution outcomes. At the conclusion of the program, online dispute resolution pioneer, Colin Rule, opined that AI was really better suited as a tool to help both parties and neutrals in mediation, moreso than arbitration. The Future Dispute Resolution New York Hackathon the following day was hosted at AAA in Manhattan and included the Wolters Kluwer Arbitration digital experience team. This collaborative workshop paired neutrals with staff technologists and coders. Guided by product designers, engineers, and user experience (UX) experts, we collaborated forming interdisciplinary teams to identify practical pain points in the dispute resolution lifecycle and to rapidly prototype technology solutions from dispute prevention alerting tools to court service portals for self-represented entrepreneurs. Building on the success of the Future Dispute Resolution Hague Hackathon, our teams brainstormed in the morning and developed next-gen ADR demos in the afternoon, aiming to make dispute resolution processes faster, more equitable, and less expensive. The presentations from nine teams at the end of the day were quite impressive, given the compressed time to develop apps. Our team created "NeutralLens" an AI product for more efficiently distilling document submissions. For accuracy, our team utilized a Retrieval Augmented Generation (RAG) an AI framework that enhances a large language model (LLM) by allowing it to retrieve relevant information from an external knowledge base to produce more up-to-date and trustworthy responses. It was all very inspiring and we hope will lead to a better experience for those utilizing ADR to get better access to justice outside the court system. See more here-- https://go.adr.org/2025-future-of-dispute-resolution-hackathon and https://www.adr.org/news-and-insights/ai-in-construction-disputes/

Will AI Settlements Spawn More?

A federal judge presiding over a class action earlier this summer said Anthropic made fair use of many authors' work to train its AI, but said the company violated copyright law by saving pirated books to a central library not necessarily used for AI training. That proved to be too many potential liabilities facing Anthropic, which just settled before an upcoming trial in December. Likewise, in the case against Eleven Labs, the defendant allegedly copied the voices of plaintiffs without consent and removed technical protections and copyright management notices from audiobooks in order to train their models. A stipulation staying the case was filed pending settlement. Legal scholars are wondering if these settlements facilitated by mediators signal how the industry will navigate the dozens of similar lawsuits pending nationwide. While settlement details remain confidential pending court approval, the timing reveals essential lessons for AI development and intellectual property law. With almost fifty other pending cases, Professor Edward Lee opines an increased probability of settlement (with which ChatGPT agrees), though they involve different companies, different types of works, various judges, and potentially enough variety in the training of the AI models to matter. Meta’s use of copyrighted works to train Llama was considered a fair use, even where Meta had obtained those works from piracy websites. However, the Meta decision was solely based on the record before the court and not a broad holding that all of Meta’s actions were fair use as to all possible plaintiffs, with other parts of the decision less favorable to the defendant. With those fair use precedents, some defendants in the other cases could feel they have decent defenses in their litigation. Anthropic was in "a unique situation," according to Professor James Grimmelmann, with as much as $1 trillion in piracy damages at stake in its worst-case scenario. "It's possible that this settlement could be a model for other cases, but it really depends on the details," he said to Reuters. Reportedly, Professor Chris Buccafusco was surprised Anthropic chose to settle, saying Anthropic was "in a position of decent strength" because of its fair-use determination, despite the piracy decision. The fate of the pending generative AI lawsuits could hinge on fair use, a still-evolving concept that no court had addressed in the cases until June. He also said Anthropic's settlement removes an early opportunity for a federal appeals court to consider fair use and issue a decision that would be binding on other cases and likely send the issue to the U.S. Supreme Court (where a bad precedent might ensue). See more here-- https://tinyurl.com/ydkynvmp and https://tinyurl.com/527phxkw and https://tinyurl.com/yn5rdruz and https://tinyurl.com/2z7nfwps and https://tinyurl.com/ayaswu8s