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

Beware Mediation Certificates of Authority

This month, the Second District Court of Appeal reversed a circuit court judge who agreed with exceptions taken to a magistrate's report and recommendation and entered a final order following a failure to show cause, thereby dismissing a residential foreclosure case with prejudice due to a bank's alleged failure to attend mediation. The court also entered a final judgment against the bank for attorney’s fees and costs pursuant to Section 57.105, Florida Statutes. This sanction was given because the bank had technically failed to attend court-ordered mediation because in not timely filing a certification of settlement authority required by Florida Civil Procedure Rule 1.720. Rule 1.720 authorizes a court to award sanctions that include attorney’s fees and costs and mediator expenses resulting from a party’s failure to appear. Violations of Rule 1.720 have typically been addressed only with monetary sanctions. As a mediator, we are not often copied on Certificates of Authority and are not involved in policing this filing, which is the court's domain. A party representative having full authority to settle under the rule means the final decision-maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing about the rule requires any party or party representative who appears at a mediation conference in compliance with the rule to enter into a settlement agreement. The rule also requires that 10 days prior to the mediation, participants must file a certification of who will be attending the mediation on behalf of the party and who has the authority to settle the case. In the H&R Block Bank v. Perry matter, the complaint was filed on behalf of H&R Block by Nationstar Mortgage, LLC, a mortgage servicer, acting as H&R Block’s attorney-in-fact. At the outset of the case, H&R Block had filed a required form which stated that a representative of Nationstar would attend any mediation on behalf of H&R Block with authority to settle the case. The trial court subsequently entered an order referring the case to mediation. Three days before mediation, H&R Block filed a certification of settlement authority under rule 1.720. H&R Block’s certification was filed seven days later than Rule 1.720 requires. Because the trial court failed to make findings supported by the record that the conduct involved was willful, persistent, or otherwise aggravated and that no lesser sanction would be just under the circumstances, the decision was reversed. See opinion here-- http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2009,%202016/2D15-1351.pdf