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

Mediation Magazine Article

So pleased to be published in this month's Mediation Magazine, a new offering from the American Arbitration Association (AAA). Mediation Magazine features a diverse range of articles and other media, including commentary on emerging trends in domestic and international mediation, case studies and lessons learned, interviews with thought leaders, innovations in mediation process design, research summaries, ethical considerations, and cross-cultural perspectives. It also offers practice-oriented content such as negotiation techniques, mediator toolkits, and dispute system design strategies. According to AAA, articles are written by leading voices in the field—practicing mediators, legal professionals, academics, and dispute resolution experts—and are complemented by interactive features such as videos to enrich engagement and accessibility. Published continuously throughout the year, Mediation Magazine aims to inform, inspire, and connect professionals committed to advancing effective, fair, and forward-looking mediation practices globally. I serve on the national panels for AAA commerical mediation and arbitraion. Though the now hundred-year-old non-profit organization has arbitration in the name, it maintains a robust mediation program. There is a growing prevalence among those drafting business contracts of including clauses requiring mediation as a precondition to initiating a lawsuit or arbitration. Disputes arising from contract obligations can be complex, technical, and even structural. Issues regarding the formation, interpretation, or enforcement of obligations invite evidentiary disputes over the circumstances surrounding the making and performance of the subject agreement. Most disputes result from the breakdown of a relationship, so I thought I'd expound on what happens in business cases and give some practical perspectives. Commercial mediators are able to ascertain the root cause of that breakdown and often help parties self-determine the outcome and avoid going to court or arbitration to get a resolution. See more here-- https://mediationmagazine.adr.org/practical-perspectives-on-commercial-mediation/

Comments to Civil Rules Proposals on Mediation & Arbitration Due 5/1

The Florida Bar’s Civil Procedure Rules Committee submitted a couple of proposals to the Florida Supreme Court including amendments likely to simplify important rules concerning mediation and arbitration. First, 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 resolved online since Covid. 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 fact 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. In addition, the Civil Rules Committee is proposing amendments to Florida Rule of Civil Procedure 1.820 (Hearing Procedures for Non-Binding Arbitration). The new language would, among other things, require an arbitrator to file with a court a notice of service of the arbitration decision, but not the actual arbitration decision itself. This might eliminate filing under seal which can be difficult for neutrals, depending on the clerk procedures in each county. The party entitled to a judgment if no request for trial de novo is made, or after a trial de novo is conducted, would be required to file the arbitration decision with the court. The proposed amendments would also require that a party file only a written request for trial to reject an arbitrator’s decision, and that a timely request for trial “be construed so as to do substantial justice.” Members of the Committee now agree that it is duplicative and unnecessary for a party to say both that the arbitration award is being deemed 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. See more here-- In Re: Amendments to Florida Rule of Civil Procedure 1.820, Case No. SC2026-0040 and In Re: Amendments to Florida Rule of Civil Procedure 1.700, Case No. SC2025-2041 https://acis.flcourts.gov/portal/search/case

AAA Announces Resolution Simulator At Legal Week

Dubbed a "Dispute Revolution," the American Arbitration Association is launching its Resolution Simulator. Expanding the utility of the previously launched construction AI Arbitrator, the Resolution Simulator uses the same reasoning and analysis as the AI Arbitrator to provide simulated decisions based on the user submissions and feedback. Designed for single party use in documents-only AAA commercial and construction disputes, it promises explainable, informational insights grounded in structured legal reasoning, analysis, and decision logic. Parties may use it to understand how an arbitrator may resolve a dispute, develop their legal or negotiation strategy, or level-set internally with clients or counsel. It may also inform alternative paths to resolution, such as settlement or mediation. Ultimately, AAA hopes the product brings legal teams insight before escalation, empowering strategic decision-making and informing a path to resolution. The latest product launch underscores the AAA's commitment to responsible AI adoption, with governance, transparency, and auditability guiding the design and deployment of all AI-enabled tools. According to the AAA, this effort builds upon their 100-year history of helping parties navigate conflict through fair, transparent, and trusted processes. AI Arbitrator's Resolution Simulator responds to user demand for practical evaluative and decisioning tools, particularly in the early stages of a dispute, by illustrating how an arbitrator might analyze the dispute. See more here-- https://tinyurl.com/4azzjb57 and https://feature.adr.org/LegalWeek2026

Voluntary Trial Resolution Bill

Changes are afoot in Tallahassee with a proposal in the current legislative session to amend the way private judging is done. Chapter 44, Florida Statutes has an option that allows parties in civil disputes to sidestep the delays without relinquishing their right to a jury trial or appeal. Although voluntary trial resolution (VTR), commonly known as private judging, has been in place for more than 25 years, it is rarely invoked with anecdotal stats of around one per year. Incidentally, I did participate in one private civil jury trial in the late 1990s with success. The Florida Bar Business Law Section’s Business Litigation Committee created a task force to identify opportunities to clarify and modernize the process of private judging. After reviewing current Florida law, analyzing relevant case law from other jurisdictions and discussing best practices, the task force concluded clarifying this process might help its use. The current statute, Section 44.104, Florida Statutes, allows parties who agree to private judging choose their own judge, file pleadings with the clerk, and conduct a trial in court or another agreed-upon venue. Uncertainties make most attorneys reluctant to recommend private judging to their clients. The proposed bill aims to close some gaps, giving lawyers more confidence to pursue voluntary trial resolution and helping parties more efficiently resolve disputes. If enacted, the updated statute would give circuit courts the authority to issue orders enforcing the parties’ agreement to pursue voluntary trial resolution, including compelling payment of compensation to the private judge. Decisions made by private judges (whether final or non- final orders) could be reviewed or appealed, just like decisions from circuit judges. At the ADR Section Executive Winter Meeting today, there was a robust discussiom of the substantive changes, as well as things like the use of the courthouse and staff in conducting these trials. Much remains in flux this session and it appears the drafters might have to go back to the drawing board. At present, the bill is likely to die in committee (as it did last year) and so those that are interested in commenting should send your thoughts to the ADR Section care of its administrator: chopkins@floridabar.org See more here-- https://www.flsenate.gov/Session/Bill/2026/965/BillText/Filed/PDF and https://flabaradr.com/wp-content/uploads/2026/01/ADR-Section-Common-Ground-FallWinter-2025.pdf and https://www.flsenate.gov/Session/Bill/2026/965/

Orlando Mediator Blog Now Top 3!

Since 2010, the aim of this blog is simply to bring awareness to the profession of Alternative Dispute Resolution (ADR) through assorted entries about mediation, arbitration and other forms of acting as a neutral online. Once again, Orlando Mediator blog received the honor of being named top among dispute resolution blogs out of the 80 best ranked on the web by traffic, social media followers, domain authority and freshness. I'm still maintaining some good company on this list with established dispute resolution blogs around the world that actually have paid professional writers and journalists. Orlando Mediator is recognized by Feedspot along with such distinguished blogs published by big names like Kluwer and Thomson Reuters and even above those by prominent ADR organizations like the American Arbitration Association (AAA), The Chartered Institute of Arbitrators (Ciarb), ODR.com, Miles, NAM, ADR times and International Institute for Conflict Prevention & Resolution (CPR). Feedspot's experts chose Orlando Mediator for what their founder calls the most comprehensive list of Dispute Resolution Blogs on the planet! Feedspot says it is the internet’s largest human curated database of bloggers and podcasts. Their list combines RSS feeds allowing users to keep track of many different websites in a single news aggregator. I am humbled again to know this labor of love for my chosen field of peacemaking is appreciated. I do enjoy keeping everyone informed on the latest trends and happenings in mediation and related fields through this outlet. Thanks again for your readership and support in 2026! https://rss.feedspot.com/dispute_resolution_rss_feeds/

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

ADR Section St. Pete Retreat

Please join fellow members of the Alternative Dispute Resolution Section of The Florida Bar later this month in beautiful St. Pete at the Hyatt Place–St. Petersburg-Downtown for their annual retreat weekend. This active section which includes certified civil and family mediators, qualified arbitrators and other attorneys looking to learn more about being effective utilizing ADR processes is now celebrating its fifteenth year! I have been honored to serve as an emeritus member of the Executive Council after serving two terms. This is a great opportunity to become more involved in the leadership of the profession and to help guide processes such as important rulemaking at the state level. The tentative schedule for the program is as follows: Friday, August 22, 2025: Happy Hour at Hyatt Place (4:00 p.m. -6:00 p.m.) Dinner at Oak and Stone (following Happy Hour) Saturday, August 23, 2025: CLE/CME Presentations at Hyatt Place (9:00 a.m. -11:00 a.m.) Lunch Provided at Hyatt Place (12:00 p.m. – 1:00 p.m.) Executive Council Meeting (1:00 p.m. – 4:00 p.m.) Off-Site Dinner and/or Team Event (TBD) This year's event will include some focus on the evolution of Nonbinding Arbitration in Florida that is increasingly being employed by many circuits to cull the court dockets still backlogged from the pandemic. Special rate room block booking cutoff is August 11th. More information here-- https://flabaradr.com/events/the-adr-section-annual-retreat/ Sign form up here-- https://tinyurl.com/ecbk94zf

More Civil Rules Proposals Affecting Nonbinding Arb

The Florida Civil Procedure Rules Committee is proposing amendments to conform to changes to the Florida Rules of General Practice and Judicial Administration adopted earlier this year in SC2023-1401, In Re: Amendments to Florida Rules of General Practice and Judicial Administration, including discovery Rule 1.280 to track Federal Rule of Civil Procedure 26(a)(1)(A)(iii) and for consistency between subdivisions. As pertains to ADR, Rule 1.700, Rules Common to Mediation and Arbitration, allows the use of both audio and video communication technology in mediation and arbitration, if the parties do not want to appear in person, which is the default. Under that rule, 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. The judge may order, or the parties may stipulate, that the mediation or arbitration may be conducted through the use of communication technology. The communication technology must include both audio and video unless all parties stipulate or the judge finds cause. Changes to Rule 1.820, Hearing Procedures for Nonbinding Arbitration, purportedly make it easier to address unintended appellate court interpretation of a recent amendment to this provision (People’s Trust Ins. Co. v.Hernandez, 4D2024-3274) and to better align the rule with existing electronic filing practices. For instance, proposed Rule 1.820 (h) is suggesting the nomenclature be simply a "Request for Trial" thereby elimimating the previous process entitled what used to be called a request for trial de novo and then, more recently, a notice of rejection of arbitration decision. Additionally, if a Request for Trial is filed within 20 days of the service of the arbitration decision, the arbitration decision must not be filed until necessary to enforce the provisions of Section 44.103, Florida Statutes, after the entry of judgment. This change seems inconsistent with the routine filing of decisions under seal until such time as the parties accept an award. The Florida Bar ADR Section is considering filing a comment on the language which may require requesting an extension from the Supreme Court of Florida, but public comments are due by August 18, 2025. See more here-- https://tinyurl.com/5d25e337

AI Hallucinations Abound

Since the advent of generative artificial intelligence and its ever-evolving use in the legal research arena, there have been troubling episodes of hallucinations with fake case citations catching both lawyers and judges off guard. We started scratching our heads a couple of years ago following the wide public release of large language models and a well-publicized federal aviation case resulting in $5,000 of sanctions. Dozens more expensive examples of false statements to courts followed, though recently America's largest injury firm was only hit with a grand. Some got pleadings stricken, public reprimands, disqualification or joint and several sanctions under Rule 11, while others were referred their state bar for disciplinary proceedings and of course, all were embarrassed. This summer, a state appellate court even caught a trial judge who decided a case based on fake law and a federal judge in a securities case had to be told by a white shoe law firm that her opinion contained hallucinated cases resulting in a withdrawn opinion. As Supreme Court Chief Justice John Roberts wisely said, "Any use of AI requires caution and humility." It is interesting to note that we are not alone in the world with this problem, though the USA leads with at least 136 such incidents to date. Some counsel fared better by being contrite and falling on their proverbial sword, being bench-slapped with smaller sanctions. Many more seemed rather recalcitrant and argued mistaken briefs were filed or that their work product (despite being vendor checked through subscription with well-known legal service providers) should somehow save them from the same fate. Now these cases have been conveniently catalogued-- on an almost daily basis-- by Damien Charlotin at this handy hallucination link-- https://www.damiencharlotin.com/hallucinations/

11th Cir.: Arb Clickwraps Valid in Fla.

The 100 year-old Federal Arbitration Act (FAA) requires courts to enforce arbitration agreements according to their terms. But arbitration is a matter of contract, and the FAA does not allow a court to compel arbitration unless it is satisfied that the parties agreed to arbitrate. If the existence of the agreement is not genuinely disputed, the court must compel arbitration.These principles apply equally to so-called “clickwrap” agreements, in which users assent to terms by clicking a button near a disclosure referencing those terms. Under Florida law, the central question is whether the parties mutually assented to be bound. In the Eleventh Circuit's recent ruling, Lamonaco v. Experian Inform. Sols., Inc., 2025 WL 1831283 (11th Cir. July 3, 2025), because Experian submitted competent and unrebutted evidence of an agreement to arbitrate, the federal district court for the Middle District of Florida erred in denying its motion to compel arbitration. Relying heavily on Bazemore v. Jefferson Capital Systems, LLC, 837 F3d. 1325 (11th Cir. 2016), appellee argued that a declaration was insufficient to prove that she had agreed to arbitrate her claims. She also claimed that Experian had by its litigation conduct waived its right to insist on arbitration. The district court denied the motion to compel arbitration, finding that the declaration submitted in support of the motion offered only conclusory assertions and rested on business records not attached to the declaration. The district court also held that Experian had waived its right to insist on arbitration which it then appealed. The Eleventh Circuit reversed, holding that the district court erred on both issues. Because the arbitration agreement delegated to the arbitrator “all disputes over the interpretation, applicability, or enforceability of the arbitration agreement,” and an amendment to the agreement stated specifically that the delegation included questions of waiver, whether Experian waived its arbitration right was for the arbitrator to decide. See more here-- https://tinyurl.com/2u45se7k and https://media.ca11.uscourts.gov/opinions/pub/files/202411270.pdf

Join Me at DRC on 8/1 for AI!

Registration is now open for the 32nd Florida Dispute Resolution Conference where over a thousand certified mediators gain continuing education and the latest info on the profession. The Florida Dispute Resolution Center (DRC) is a unit of the Office of the State Courts Administrator under the Supreme Court of Florida. The Supreme Court of Florida, through the DRC, certifies mediators in the areas of county court, circuit court, family, dependency, and appellate. The DRC also provides staff to its boards and committees, certifies mediation training programs, provides basic county mediation training and advanced continuing mediator education, and assists the local courts throughout Florida with alternative dispute resolution. I have the honor of being asked by the DRC to join some of my esteemed colleagues from the Executive Council of The Florida Bar's Alternative Dispute Resolution Section to give the 2025 opening plenary session. We will introduce the manner in which Artificial Intelligence (AI) has evolved generally for dispute resolution and how it is employed specifically in mediation. Along with my distinguished panelists, we will share advantages and disadvantages that arise with the use of AI, as well as specific ethical and pragmatic challenges mediators face in this rapidly-evolving environment. This year's conference will be held virtually on Friday, August 1, 2025 from 9:00 am until 5:15 pm. On the day of the conference, you will be eligible for up to 6.3 hours of continuing education, with 1.2 hours of mediator ethics for certified mediators. Virtual attendees will be able to view all conference recordings for 60 days post-conference and will be eligible for additional hours of continuing education. See more here-https://drcconferences.swoogo.com/2025conference/sessions

NBA in FLA

Some practitioners did not take note of the change last summer that rejecting a nonbinding arbitration award went from filing for trial de novo to requiring including notice requesting rejection. Effective July 1, 2024, amended rule 1.820(h) requires a notice of rejection of the arbitration decision and request for trial. This was done to to clarify the process for rejecting an arbitrator’s decision and requesting a trial de novo. Under the amended rule, an arbitration decision is deemed rejected only if such request is filed with the court within 20 days of service of the arbitrator’s written decision. See In re Amends. to Fla. Rules of Civ. Proc., 386 So. 3d 876, 878 (Fla. 2024). In a recent Fourth District Court of Appeal case, it was held that a request for trial de novo, which does not also include a notice of rejection of the arbitration decision, does not comply with amended rule 1.820(h). If a notice of rejection of the arbitration decision and request for trial is not timely made, the decision must be referred to the presiding judge, who must enter such orders and judgments as may be required to carry out the terms of the decision as provided by Section 44.103(5), Florida Statutes. See more here-- https://tinyurl.com/2rbdjdes