ADR Rules & Policy Urges Uncertified Mediators Be Bound

Last month, the ADR Rules & Policy Committee of the Florida Supreme Court filed a response to comments on its own proposed rule revisions, stating that the court has the inherent authority and obligation to ensure that the mediation process parties use operates in accordance with mediator rules and standards already adopted. The proposed revisions pertain to the practice and procedures of mediation in the court system and therefore fall under the Court’s authority under Article V, Section 2(a) of the Florida Constitution. The proposed rules require those who mediate court connected cases as part of the machinery of the judicial process to observe the existing rules of mediators, regardless of certification. Mediation has been an integral part of the Florida court process for over thirty years. The committee found it inconsistent and illogical to have one group of professionals in the court process who are subject to no ethical standards and disciplinary process involving the vitally important mediation service they provide to the parties and the court system. Florida court mediators are not only required to be familiar with the statutes and rules governing mediation, but are also obligated to follow court rules of procedure, administrative orders, local rules, and any other rules related to mediation in the court system. ADR Rules & Policy did not yield to criticism found in the comments filed and urged the court to proceed by adopting proposed amendments to Florida Rules of Civil Procedure 1.710 and 1.750; Florida Small Claims Rule 7.090; Florida Rule of Juvenile Procedure 8.290; Florida Rule of Appellate Procedure 9.700; Florida Family Law Rule of Procedure 12.741; and Florida Rules for Certified and Court-Appointed Mediators 10.200 and 10.700. The committee stated parties and their attorneys are still free to choose whomever they want to mediate their case without the beneficial boundaries of mediator ethics and a disciplinary system to enforce them, provided that they mediate prior to filing a court case. They may also choose to use any type of ADR process prior to filing a lawsuit. However, the committee made clear it does not believe the creation of an exempt group of compensated court professionals was the intent of the court for mediation in Florida. See more in Case Number: SC20-565 here-- http://onlinedocketssc.flcourts.org

 

Rare Florida Case Addresses Arbitrability

This year, a Florida district court of appeal chose to delve into what they saw as a "rather arcane" issue in arbitration of who decides whether a dispute is subject to a contract's arbitration provision: an arbitrator or a judge? There are many recent decisions from around the country deferring to the arbitrator. However, the majority explains the contract's provision in this case did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability. Unbeknownst to the renter of an Airbnb, the host had installed hidden cameras throughout the unit. Plaintiff alleged that Defendant secretly recorded the entire stay in the unit. For this violation of privacy, a lawsuit was filed in state court. Airbnb then filed a motion to compel arbitration. Airbnb argued the claims were subject to arbitration through Airbnb's Terms of Service, under which the renter agreed to be bound to pursuant to a "clickwrap" agreement. The arbitration provision contained fairly standard language such as "You acknowledge and agree that you and Airbnb are each waiving the right to a trial by jury." The court held that the clickwrap agreement's arbitration provision and the AAA rule it referenced that addresses an arbitrator's authority to decide arbitrability did not, in themselves, arise to "clear and unmistakable" evidence that the parties intended to remove the court's presumed authority to decide such questions. The evidence on what these parties may have agreed to about the "who decides" arbitrability question was considered ambiguous. Therefore, the trial court retained its presumed authority to decide the arbitrability dispute. A conflict with decisions from other districts was certified. See full opinion here-- https://tinyurl.com/y4oyxsgv