OA on Civil Rule 1.820 Nonbinding Arb 10/8

The Supreme Court of Florida has scheduled oral argument for October 8, 2026 in a pending civil procedure rules case following submission and comment period on The Florida Bar Civil Procedure Rules Committee's proposed amendments regarding outcome of cases under Florida Rule of Civil Procedure 1.820. 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 of the 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.” Just decided by the 6th DCA while this change is pending was a similar case, The Waterfront in Naples Condominium Association, Inc. v. Reynolds, Consolidated Case Nos. 6D2025-0624, 6D2025-0623 on August 21, 2026. In that opinion, the court found the goal of interpretation is to arrive at a fair reading of the rule text on the basis of how a reasobable reader would understand it at the time of issue. They declined a magic words test, such that a timely filed document (not a specific form) served as enough notice required for the trial court to conclude the award was rejected because a trial de novo was requested in compliance with the statute, FS 44.103. See official rules amendment petition case pending before the Florida Supreme Court docketed 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 and most recent case from which a conflict was certified-- https://flcourts-media.flcourts.gov/content/download/2494192/opinion/Opinion_2025-0623.pdf

Oral Argument Scheduled on Rule 1.700 Proposal

The Supreme Court of Florida has scheduled oral argument for September 10, 2026 in a pending civil rules case following submission and comment period on The Florida Bar Civil Procedure Rules Committee's proposed amendments. Regarding referral of cases under Florida Rule of Civil Procedure 1.700 (Rules Common to Mediation and Arbitration), a judge may enter an order referring all or any part of a case to mediation or arbitration, unless prohibited by law. The parties to any case may agree to mediate or arbitrate any issue at any time. Except as provided in this rule, mediation and arbitration must be conducted in person. This is the new default, even though well over 90% of cases are now resolved online since the pandemic. The judge may order, or the parties may stipulate, that the mediation or arbitration may be conducted through the use of communication technology. To be clear, communication technology must include both audio and video, unless all parties stipulate or the judge finds cause. This seems to be due to the increasing experience online that many parties of late claim they don't have functioning cameras and some insurance adjusters appear with black screens on Zoom. The proposed amendments would essentially require a mediation or arbitration via remote technology must include both audio and video-- i.e., fully appearing online at the proceeding. The ADR Section of The Florida Bar filed a comment to seek clarification that this also apply to nonbinding arbitration and suggesting as a practical matter, not permitting audio participation even when agreed to by the neutral conducting, takes away options and flexibility. See more here-- In Re: Amendments to Florida Rule of Civil Procedure 1.700, Case No. SC2025-2041 https://acis.flcourts.gov/portal/search/case

Join me and a federal judge 7/10 for free noon CME/CLE!

My old colleague from the United States Attorney's Office in the early 1990s, current U.S. District Judge Paul G. Byron, and I will give a lunchtime Zoom for the ADR Section of The Florida Bar July 10, 2026 at noon ET about conducting federal mediation in the Middle District of Florida, as well as nuances in the Northern District and Southern District. We aim to dispel the impression that mediation in federal cases is somehow different or more difficult. In fact, the similarities are actually greater than the differences. All three federal district courts in Florida: Routinely require mediation; Treat mediation as part of case management; Require attendance by decision-makers; Protect confidentiality; and Expect counsel to participate seriously. Where they differ is primarily in local rules and administration. Attendees of this alternative dispute resolution online presentation will leave with a better understanding of how mediation functions as a structural component of federal civil practice in Florida, including magistrate judge-directed settlement conferences. Our program walks through the authority for mediation under federal rules, how each district implements the process differently, and if "good faith" truly means anything in federal court. Please provide your name and email address to register for this free CLE event. Once you have registered, you will be on the list to receive an email containing the Zoom Link to attend this course. If you do not receive a Zoom link by July 10th at 10 am, please email-- flabaradr@gmail.com. Thank you! See more info and register here-- https://docs.google.com/forms/d/e/1FAIpQLSeJR7UPUqLb1vES3Kw9NhMQKeGD8NNbPOYIkcOVobRkdJ32Kw/viewform

SCOTUS Unanimous: Last Mile Exempt §1 FAA

Last week, the U.S. Supreme Court issued a decision in Flowers Foods, Inc. v. Brock, U.S. Sup. Ct. No. 24-935, 608 U.S. ___ (May 28, 2026) regarding the Federal Arbitration Act (FAA) and the question of whether someone can qualify as a worker under the §1 exemption if they never cross state lines and never interact with vehicles that do. Typically, the FAA requires courts to enforce many private arbitration agreements, but it also provides that “nothing” in the law shall be used to compel arbitration in disputes involving the “contracts of employment” of any class of workers “engaged in . . . interstate commerce.” 9 U.S.C. §1. The Supreme Court’s latest decision eliminates one of the many arguments that have been raised to counteract the interstate arbitration exemption under the FAA. In recent years, SCOTUS addressed the scope of §1’s exemption no fewer than three times. In each case, they rejected efforts to cabin its reach. First, in New Prime Inc. v. Oliveira, 586 U.S. 105 (2019), they held that the “contracts of employment” §1 embraces include contracts governing independent contractors, not just employees. Then, in Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), they held an airline worker who loaded and unloaded cargo fit within §1’s exemption, even though she did not fly planes or otherwise cross state lines. Finally, in Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 249 (2024), they held that a worker can fall under §1 whether employed in the “transportation industry” or some other, so long as their work “play[s] a direct and necessary role in the free flow of goods across borders.” In the instant mattter, they clarified that independent contractors and employees that make “last mile” deliveries as part of a “continuous journey” of goods from one state to another are exempt from arbitration under §1 of the FAA covering interstate transportation workers, even if all of the distributor’s services are intrastate. The Court stated such workers “can sometimes be direct, necessary, and active participants in moving goods ‘from … points in one state’ to ‘points in another state’ without crossing state lines or interacting with vehicles that do.” See more here-- https://tinyurl.com/52rvabua and https://tinyurl.com/mj39rvtf

Celebrating 25 Years of Mediating!

Hard to believe this month marks my 25th year serving lawyers and litigants as a Florida Supreme Court Certified Circuit Civil Mediator, an Appellate mediator (since the 2001 pilot program with our 5th DCA) and as a federal district court mediator. Back in the day, you had to be a Florida lawyer for at least five years before even becoming certified (much like a judge). I fondly recall my excellent training with former judge David Strawn, a pioneer in the field of mediation. I am still in touch with my mediation training classmates, some of whom are also mediating full-time, and one who took the bench and presided over our business court in Orange County. Through the years, this special field in the law has evolved and some rules have changed, but by and large the basics are the same, proving that our 3,000 year-old tradition of human dispute resolution still very much has a place as really the principal means to dipose of cases in the modern court system. Even with the seismic shift in our technique due to mediating lawsuits mostly online since the pandemic, online platforms are now second nature to judicial officers, practicing lawyers, parties and mediators. Courts continue using technology for online hearings, even though some are requiring physical attendance. This profession of attorney-mediators is now strongly represented by the Florida Bar ADR Section that has supported practitioners of mediation and arbitration for over fifteen years. At the time of state section formation in 2010, I also founded the Orange County Bar Association ADR Committee to deal with local issues in dispute resolution. The discourse among members of both organizations has never been higher, with committed practitioners engaged in changing the role of neutrals for the better through training and rules commentary. While I look forward to continued advances in online dispute resolution-- which does enjoy just as high a success rate in producing settlements-- I also enjoy good old-fashioned face-to-face negotiation! Schedule with me to settle something online or in person here-- https://www.nadn.org/lawrence-kolin

Spotify Payola Case to Arbitrate

Spotify was sued in federal court by a user alleging playlists and recommendations are shaped by undisclosed pay-for-play arrangements and hidden commercial incentives. The streaming service moved to compel arbitration because it provided a conspicuous notice of its current terms of service by email and by an in app pop-up, both of which contained a hyperlink with the opportunity to review the applicable arbitration agreement. Spotify's terms of use contained a mandatory arbitration clause and class action waiver. Spotify's terms also said it may make changes and that,“[i]n some cases, we will notify you in advance, and your continued use of [Spotify] after the changes have been made will constitute your acceptance of the changes.” Terms further provided that “[i]f Spotify makes any material change to the Arbitration Agreement..., you may reject any such change by sending us a personally signed, written notice of your decision to opt out of those changes” by email within 30 days. Plaintiff continued to use Spotify after receiving both notices and did not opt out of changes to the arbitration agreement. Plaintiff then upgraded her Spotify account to the paid subscription service and began receiving downloadable receipts that contained hyperlinks to the operative Terms of Use each billing cycle. The presiding judge found that under the Federal Arbitration Act (FAA), 9 U.S.C. § 4, “a district court must enter an order to arbitrate upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.” A court considering whether to compel arbitration pursuant to a purported arbitration agreement must decide: “(1) whether there exists a valid agreement to arbitrate at all under the contract in question and if so, (2) whether the particular dispute sought to be arbitrated falls within the scope of the arbitration agreement.” Applying ordinary contract law principles, courts routinely uphold “‘clickwrap’ (or‘clickthrough’) agreements, which require users to click an ‘I agree’ box after being presented with a list of terms and condi-tions of use” “for the principal reason that the user has affirmatively assented to the terms of agreement by clicking ‘I agree.’” Therefore, Judge John G. Koeltl of the Southern District of New York issued an order granting Spotify’s motion to compel arbitration and dismissing the class allegations with prejudice. See more here-- https://tinyurl.com/bddrkhf2 and https://tinyurl.com/m98eu8na

Join us at OCBA Bench Bar 2026 on May 1!

I am pleased to be asked back to the biennial Orange County Bar Association Bench Bar Conference May 1st in Orlando to discuss private judging and arbitration, including nonbinding arbitration which is widely misunderstood. This year's football-themed event is dubbed "The Ultimate Playbook: Winning Techniques From The Bench." This unique event will bring together 300+ legal professionals, esteemed judges, and influential members from Orange, Osceola, and Seminole counties, all coming together. We'll have enlightening discussions and hear valuable insights from legal experts across various domains, including Business Law, Criminal Law, Estate, Probate & Guardianship, Personal Injury, Circuit Civil, AI Ethics, and more. By being with experienced lawyers and judges, you will learn from the best and gain unparalleled knowledge from seasoned legal professionals who will share their insights on cutting-edge legal topics. Networking with the brightest minds in the legal industry, this meeting fosters valuable relationships that can shape your legal career. Training sessions will enhance your skills and keep you up-to-date with the latest developments in the legal field. We'll also preview tools from various legaltech vendors who will share how their products and services to enhance and streamline your legal practice. My session is entitled "Calling in the Special Teams: Arbitration & Private Judging." In the fast-paced game of litigation, knowing when to call in your ADR “special teams” can be the key to strategic success. This dynamic and engaging CLE will explore how arbitration and private judging are being used as powerful tools to resolve disputes more efficiently, creatively, and cost-effectively. Participants will gain insight into the tactical advantages of these alternative dispute resolution mechanisms, including how and when to incorporate them into their legal strategy. Seasoned practitioners will break down best practices, common pitfalls, and recent trends in the use of arbitration clauses, the selection of private judges, and the enforcement of awards and judgments. Whether you're new to ADR or a veteran seeking to expand your toolkit, this session will equip you with the knowledge to confidently navigate outside the traditional courtroom — and make the winning call when it counts. Eloisa Pino, our moderator is joined by Alice Blackwell, Lawrence Kolin and The Honorable Heather Pinder Rodriguez. See more here-- https://orangecountybar.org/resource/resmgr/documents/bench_bar/2026/ocba-bench_bar_schedule-8.5x.pdf