Friday, July 1, 2022

SCOTUS Arbitration Decisions

As this tumultous term comes to a close, a pair of recent employment case rulings has given some to insight into the future of the U.S. Supreme Court's direction on arbitration which has been pretty firm as of late. Traditionally, the Court has relied upon precendent and the Federal Arbitration Act (FAA) in enforcing the right to arbitrate as contractual in nature and upholding those agreements. More recently, the Court is reversing decisions that apply even-handed rules to the FAA. In Morgan v. Sundance, a unanimous Court rejected the two-part test applied by most federal circuits in evaluating whether a party has waived its right to compel enforcement of an arbitration agreement. Under that test, waiver would be found only if a party acted in a manner inconsistent with its arbitration rights and that inconsistency caused prejudice to the other side. The principal justification for requiring prejudice was federal policy favoring arbitration. Finding that the usual test for contractual waiver typically requires only inconsistent conduct, the Court held it improper to add a prejudice requirement onto the waiver analysis just for arbitration agreements. The text of the FAA makes clear that courts are not to create arbitration-specific procedural rules. In Viking River Cruises v. Moriana, eight of nine justices agreed with the result relying in part on a severability provision in the arbitration agreement to narrow an otherwise invalid wholesale waiver of state Private Attorneys General Act (PAGA) claims. This suggests that whether courts will compel arbitration of individual PAGA claims may turn on the specific language of the arbitration agreement at issue. The lone dissent came from Justice Thomas, who long has viewed the Federal Arbitration Act does not apply to cases in state courts. The FAA also can preempt rules “that are generally applicable as a formal matter” but have the effect of making arbitration agreements ineffective because they are inherently inconsistent with arbitration. Such rules would include those that would require a party to arbitrate on a class basis or not at all. See decisions-- and and more here-- and

Wednesday, June 1, 2022

Join me at Lawyer/Mediator Forum at Florida Bar President’s Showcase!

In order to improve the mediation process, The Florida Bar’s Trial Lawyers and Alternative Dispute Resolution Sections are engaging in a unique collaboration to co-host the first “Litigator-Mediator Forum” at the President's Showcase during our Annual Convention in Orlando on June 23, 2022 from 1-4 pm. This two-part CLE presentation will provide trial lawyers and mediators a direct platform to discuss how to make mediation more effective and efficient. The purpose of the Forum is not just to provide continuing legal education to trial lawyers and mediators on ethical rules and mediation advocacy skills, but to exchange ideas for improving the mediation process in all areas. Mediation has never been a more critical and timely topic in Florida due to the over one million case backlog created by the pandemic that continues challenging our courts and delaying access to justice for Florida litigants. As nearly all cases are now settled before trial, and most cases are settled at mediation, effective mediation advocacy and negotiating skills are essential to achieving justice. This topic is also timely because the Florida Supreme Court is presently considering several significant changes to the ethical rules governing mediation as well as case management restructuring and these rule changes will be discussed during the Forum. I am honored to have been selected as one of the Table Leaders who will facilitate discussion between trial lawyers and mediators regarding three topics designed to encourage recommendations by the audience on how trial lawyers and mediators can partner better together to improve mediation within the ethical rules governing dispute resolution. See more about this exciting program here--

Tuesday, May 3, 2022

Breach of Confidence at SCOTUS

Somewhat overshadowed by yesterday's news of Roe's imminent demise was the unprecedented nature of the leak to the press of an unpublished and confidential draft opinion in a pending case. After such a breach of trust committed by someone with access at U.S. Supreme Court, there is no telling what will happen going forward in terms of perceptions of integrity and legitimacy of this institution. The environment inside the building is sure to be tense. Outside the courthouse, erosion of public confidence in the third branch of government continues. As the Court states, its Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Chief Justice Roberts in directing an investigation by the Marshal has revealed the draft to be authentic, but cautions it does not represent a decision by the Court or the final position of any member on the issues in the case. He also states, "to the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way." Imagine what damage could be done to parties or their interests if the results of votes to any future case were routinely leaked. What if people traded on information from what was once considered kept a sacred place before justice was rendered? How about the rest of the federal and even state judiciary? For now, the Chief Justice still believes the Court has intensely loyal employees who remain dedicated to the rule of law. "Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here." See Court press release here--

Wednesday, April 20, 2022

Comments on Non-Binding Arbitration due 5/6

The Supreme Court of Florida's Standing Committee on Alternative Dispute Resolution Rules and Policy is charged with monitoring and making recommendations to improve and expand the use of court-connected Alternative Dispute Resolution (ADR) not limited to mediation through the recommendation of the adoption of statutes, rules, policies, and procedures. This Committee is seeking feedback on two proposed amendments related to statutory non-binding arbitration. Specifically, they are considering revisions to Rule 1.820, Florida Rules of Civil Procedure (Hearing Procedures for Non-Binding Arbitration) and Section 44.103, Florida Statutes (Court-ordered, nonbinding arbitration). While the ADR Section of the Florida Bar whose Executive Council on which I serve will be commenting on behalf of its almost one thousand members, please consider individually responding to these proposals. The Florida State Court System consists of 20 judicial circuits that encompass Florida’s 67 counties and so practice in this area of ADR varies widely under local administrative orders. Comments are due to the Florida Dispute Resolution Center on or before Friday, May 6, 2022, via The proposed revisions can be found here-- and

Friday, April 1, 2022

FAA Jurisdiction Case Decided by SCOTUS

The Supreme Court of the United States yesterday issued an important ruling on federal court jurisdiction in matters governed by the Federal Arbitration Act (FAA) saying it does not allow federal courts to “look through” to the dispute underlying an arbitration to establish jurisdiction to confirm or vacate an arbitration award. The FAA authorizes a party to an arbitration agreement to petition a federal court for various forms of relief. The Act’s authorization of such petitions does not itself create the subject matter jurisdiction necessary for a federal court to resolve them. Previously, in Vaden v. Discover Bank, the Court assessed whether there was a jurisdictional basis to decide an FAA Section 4 petition to compel arbitration by means of examining the parties’ underlying dispute. Specific language in Section 4 instructed a federal court to “look through” the petition to the “underlying substantive controversy.” If the dispute underlying a Section 4 petition falls within the court’s jurisdiction for example, by presenting a federal question, then the court may rule on the petition to compel arbitration. In this case, Badgerow v. Walters, the question presented was whether that “look-through” approach to jurisdiction applies to applications to confirm or vacate arbitral awards under Sections 9 and 10 of the FAA. The majority ruled Congress chose to respect the capacity of state courts to properly enforce arbitral awards. Justice Kagan writes "the look-through rule is a highly unusual one: It locates jurisdiction not in the action actually before the court, but in another controversy neither there nor ever meant to be." This application in an employment termination case should go to state, rather than federal, court raising claims between non-diverse parties involving state law. See opinion here--

Tuesday, March 1, 2022

Free Online Mediation CLE/CME 3/18

Join us March 18th at 1:00 pm EST for Mediator’s Notebook = Attorney’s Toolbox, a free CLE/CME Webinar with 1.5 credits of CLE from The Florida Bar, but that's not all you'll gain by attending. Whether you are representing plaintiffs or defendants, you'll gain valuable insights on helping your mediator to put everyone's focus on the path to reasonable resolution. Attorneys can often help a mediator to assess what barriers to settlement may exist. We will address what pre-mediation preparation to consider. Additionally, we will cover laying the groundwork for ongoing discussions through messaging. It is often said a case is not worth a penny more than someone is willing to pay or a penny less than someone is willing to accept. We'll discuss how those most patient at mediation have the most to gain. More information and registration details here--

Tuesday, February 8, 2022

Oral Argument On FL Remote Proceedings Rules

Today, the Supreme Court of Florida heard from various commenters, interest groups and bar sections on the changes proposed to multiple procedural rules to include attendance by remote technology, including mediation. The Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 filed a comprehensive petition to amend the Florida Rules of Civil Procedure, the Florida Rules of General Practice and Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Rules of Traffic Court, the Florida Small Claims Rules, and the Florida Rules of Appellate Procedure. The proposed amendments would provide permanent, broader authorization for the remote conduct of court proceedings. The justices seemed largely receptive to the package and had few questions for those appearing at oral argument, indicating the new rules package will most likely be accepted as proposed. See more in docket here-- and oral argument here--