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

Florida Arbitrator Rule Changes

The Supreme Court of Florida just issued an opinion on its Alternative Dispute Resolution Rules and Policy Committee's petition to amend the Florida Rule for Court-Appointed Arbitrators 11.010, entitled Qualification. The amendments to Rule 11.010 are intended to clarify the qualifications for Florida court-appointed arbitrators. Effective immediately, the court modified the rules such that a sole or chief court-appointed arbitrator must be a member in good standing of The Florida Bar for the preceding five years, unless the parties agree in writing that the sole or chief court-appointed arbitrator may be an individual who has been for the preceding five years a member in good standing and eligible to practice law in any United States jurisdiction, which includes the District of Columbia and any state, commonwealth, territory, or possession of the United States. In addition, the rule is amended to clarify that a non-licensed individual who is not currently disbarred or suspended from practice in any jurisdiction may serve as a non-chair arbitrator on an arbitration panel with the written agreement of all parties. This change enables parties to select from a wide variety of neutrals to be utilized in the arbitration process with some safeguards particularly focused on the chair, but allowing for wings such a non-lawyers with related expertise that may not have been otherwise qualified. See more from Florida Supreme Court case number SC24-0442 here-- https://tinyurl.com/fv45n4p6

Non-binding Arb Rule Comments due 5/2!

The Civil Rules Standing Committee of The Florida Bar is proposing changes to Florida Rule of Civil Procedure 1.820 regarding hearing procedures for Non-Binding Arbitration. This informal and expeditious Alternative Dispute Resolution process is being utilized more and more to clear dockets backlogged from Covid, Hurricanes and general lack of trial dates. Judges in many Florida Circuit Courts are referring cases to this process and so some changes are being put out for comment. Among the changes are serving the award on the parties rather than filing with the court under seal. This is likely because many of our 67 counties have no pull down menu for filing under seal and can lead to awards being seen inadvertently by the judicial officer presiding over the case. Another change contemplates maintaining the original exhibits through the end of the case. I'm not sure arbitrators want to become deputy court clerks warehousing records, but parties can agree to do it themselves. Interested persons should send comments to: midavis@floridabar.org before May 2, 2023. See more here-- https://tinyurl.com/58j7xa4t

Valentine's date? Arb Forum 2/14

Join us for the Alternative Dispute Resolution (ADR) Section of the Florida Bar's next Arbitrator's Forum on February 14, 2023 at 8 am EST live on Zoom. Invite a fellow arbitrator or litigator to this complimentary event on Valentine's Day as we speak to statewide practitioners about their preferences and practices. This month, we will discuss “What Arbitrators Need To Know About Remedies, Attorney's Fees, Punitive Damages, and More!” The Florida Bar ADR Section's standing Arbitration Committee instituted the forum series last year to create a community of better informed arbitration neutrals in our state. We listen and learn from each other by talking through common arbitration challenges and how they might be better resolved. Our discussion is frank and encourages participation by all. Please also consider becoming an official ADR Section member as lawyers from those practice areas dealing with arbitration join their full-time neutrals colleagues to discuss what works, what confounds, and how to improve skills in this growing field. See more here-- bit.ly/ADR_ArbForum_6

ADR Section Meeting Next Month in Orlando

The Florida Bar Alternative Dispute Resolution (ADR) Section mid-year meeting occurs January 17, 2019 in Orlando. Our Executive Council will be meeting in-person and all section members are invited to attend, as always. If members of the section have something specific to put on that agenda, please contact Stefanie Svisco, our Florida Bar Program Administrator in Tallahassee. At that time, our section also will be joining with The Florida Bar to produce a training program for mediating and arbitrating attorney grievances. Neutrals are always needed for this process so if you have a desire to get involved, come live to the training or find it online after the meeting and get involved in helping The Florida Bar address these situations. Another project underway next year is a request from the Florida Supreme Court’s Rules & Policy Committee for input from our section members on Mediator Ethics Advisory Committee (MEAC) opinions as well as the Ethical Rules for Certified and Court-Appointed Mediators. This is your opportunity to let the Rules & Policy Committee know which MEAC opinions should be reviewed and potentially revised. The rules form the foundation for MEAC opinions and analysis. Are there areas where the rules should be amended or clarified? The process of amending or making new rules in Florida requires advocates contact the relevant rules committee with suggestions for rule changes based on outcomes and decisions that the participants believe highlight areas of confusion or unintended consequences. Please take this opportunity to let us know. We will capture the comments on our website and submit them to the ADR Rules & Policy Committee as they begin the process of considering upcoming rule changes. We will begin accepting your submissions on the rules starting on February 1, 2019 with a cut-off of March 31, 2019. You will receive a separate email with the details for the submission after January 1, 2019. See more here-- https://bit.ly/2R81ECk

Join me next month for Arbitration Backlash

The Cardozo Legal Society has invited me to speak next month at its breakfast meeting in downtown Orlando at the law firm of BakerHostetler. This one-hour general credit CLE will take place July 12th at 8:00 am in the SunTrust Center located at 200 South Orange Avenue. The U.S. Supreme Court just issued another decision upholding contracts to arbitrate rather than litigate disputes. Arbitration, however, continues to be attacked by media and elected officials despite being an effective ADR method to resolve disputes and control the rising cost of trying lawsuits. Federal law supports and governs the practice through the Federal Arbitration Act. To be enforceable, a clause must provide a meaningful opportunity for redress, and courts review contractual provisions for fundamental fairness. Because the litigation system has become so expensive, arbitration is often the preferred forum for disputes involving amounts in controversy for which litigation of claims is uneconomical. My talk explores the recent backlash against arbitration and reminds attendees of the origins and benefits of this dispute resolution process. The content is designed for lawyers who represent clients in arbitration and for attorneys who use arbitration clauses in contracts. I am a past chair of Cardozo Legal Society and former executive board member of our local non-profit federation, JFGO. Cardozo is a Business & Professional Society that offers attorneys, judges, law students and professors, and those in related roles in the legal profession an opportunity to get involved with the community while creating long lasting relationships with colleagues. See registration link here-- https://bit.ly/2KnWHlt

Seeking to Compel or Stay Arbitration?

I'm often asked about requesting courts to compel arbitration when the opposing party commences a lawsuit or otherwise expresses the intention to avoid arbitration of a dispute even though the dispute is subject to a valid arbitration agreement. If there is no lawsuit pending, a party may ask a court to compel the other party to arbitrate the dispute under the consented terms of a contract or arbitration clause in an agreement. If a lawsuit has been filed, the party seeking to compel arbitration may make the request by motion in the pending litigation. In that case, the practitioner should consider applying to stay the litigation pending arbitration, compel arbitration, or both. When a party objects, citing arbitration language in a written agreement, the Revised Florida Arbitration Code, F.S. §682.01 et seq., provides that any party may apply by motion for an order directing the parties to a lawsuit to comply with a governing arbitration clause. A party seeking to compel arbitration has the burden of establishing an agreement to arbitrate exists. The statutory process is as follows: F.S. § 682.015 Petition for judicial relief.— (1) Except as otherwise provided in s. 682.20, a petition for judicial relief under this chapter must be made to the court and heard in the manner provided by law or rule of court for making and hearing motions. (2) Unless a civil action involving the agreement to arbitrate is pending, notice of an initial petition to the court under this chapter must be served in the manner provided by law for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by law or rule of court for serving motions in pending cases. See http://bit.ly/2wxydLH

Revised Florida Arbitration Code Reminders

It is important to remind potential parties to state arbitration that the Revised Florida Arbitration Code can still apply to arbitration agreements made before its effective date of July 1, 2013, if all the parties agree. Otherwise, the law existing at the time of the arbitration agreement applies through June 30, 2016. Commencing on July 1, 2016, all arbitration agreements, regardless of their date, will be governed by Chapter 682, Fla. Stat. The statute does not apply to any arbitration that commenced, or any right that accrued, before July 1, 2013. Pursuant to the revised code, it automatically applies to all arbitration agreements entered into after July 1, 2013. Revision applicability should be of interest to legal professionals drafting arbitration provisions common to industries throughout Florida, including: construction, consumer, insurance, employment, securities, and commercial contracts. In regard to application of Statutes of Limitation, we are reminded of the Florida Supreme Court Case of Raymond James v. Phillips, et al., No. SC11-2513 (May 16, 2013) holding that Florida’s statutes of limitation apply to arbitrations. Florida’s SOL time frames are contained in Chapter 95, Fla. Stat. and apply to any “civil action or proceeding.” Fla. Stat. § 95.011 does not expressly define “action” or “proceeding.” The use of this undefined phrase was the subject of significant debate in securities arbitrations a few years ago. Without reference to Florida’s SOL, securities firms, as well as foreign and domestic companies conducting business in this state, were faced with rewriting their arbitration agreements to provide an express limitations period. Because of the uncertainty associated with the enforceability of such provisions, some may have avoided doing business in this state altogether. The Supreme Court of Florida in Phillips rejected arguments that the legislature did not intend to incorporate arbitrations within its reference to proceedings. Likewise, the court found an arbitration proceeding is an “action” broadly defined to encompass any “civil action or proceeding." Writing for a unanimous court, Justice Pariente opined arbitration proceedings are utilized in a wide array of contexts and not applying statutes of limitation would permit parties to wait to bring a claim until documents or witnesses are difficult to locate-- a situation that would significantly increase the time, effort, and expense to resolve a dispute. See more in the statute here-- bit.ly/1SZFP1g and opinion here-- http://archive.law.fsu.edu/library/flsupct/sc11-2513/op-sc11-2513r.pdf