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

FL Non-Binding Arb Rule Changes Effective 7/1

The Supreme Court of Florida accepted most of the Florida Bar Civil Rules Committee’s proposal to amend Rule of Procedure 1.820 regarding the Non-Binding Arbitration process, though rejected requiring that an arbitration decision be served on the parties, but not filed with the court. The Committee proposed this change because the move to electronic filing made rule 1.820(g)(3)’s requirement to file an arbitrator’s decision under seal unworkable, as it is difficult to shield certain parts of an electronic case file from review by the presiding judge. Though they agreed the rule needs to be amended to better align with existing electronic filing practices, they believe an arbitrator’s decision needs to be filed with the court after the arbitration process has concluded to avoid unnecessary confusion and to ensure that the court can timely act on the decision under rule 1.820(h) if no request for trial de novo is made. Still, the court might revisit this matter and suggested a possible solution may be to simply require arbitrators to use a coversheet when filing their decisions with the court reminding the presiding judge not to review the decision-- unless no request for trial de novo is made in accordance with Section 44.103(5), Florida Statutes (2023). As for the changes going into effect this summer, Rule 1.820(h) is now retitled “Notice of Rejection of the Arbitration Decision and Request for Trial” and clarifies the process for rejecting an arbitrator’s decision and requesting a trial de novo. Under the amended rule, an arbitration decision will be deemed rejected only if such notice is filed with the court within 20 days of service of the arbitrator’s written decision. See more here-- Fla. S. Ct. Case number SC2022-1719 https://tinyurl.com/5c5wbttn

Anniversary of E-Discovery Amendments

Today marks one year since significant changes were made in 2015 to the original 2006 federal rules on electronic discovery. Federal Rule of Civil Procedure 26(b)1 now emphasizes proportionality and seems to have influenced determining the expense or burden of proposed discovery in a more realistic way. The advent of technology assisted review has also brought costs down and is being employed more frequently by parties and is accepted and even encouraged by courts. My role remains as E-neutral, mediator or sometimes court-appointed special master to facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature private caucuses with retained experts or information technology liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding sanctions and unpredictable judicial outcomes. Cooperation using alternative dispute resolution may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawbacks or agreed confidentiality orders. Rule 37(e) improved the safe harbor for mistakes in deletion, recognizing the volume of data generated is ever increasing and has made preservation more challenging. Sophistication of the parties is still taken into account in reasonable steps taken to initiate holds, but a lawyer's duty of competence in technology in more important than ever. Our E-Discovery & E-Neutral Services can help in that area, providing assistance by hosting Meet and Confer sessions, facilitating cost effective, mutually cooperative, and relevant ESI programs-- even in state court, with Mediated Case Management or Pretrial Stipulations under Florida Civil Rules 1.200 or 1.201. As Special Magsitrates, we are available to monitor E-discovery compliance or perform complex in-camera reviews for which judges don't have time. See more here-- http://www.uww-adr.com/services/e-discovery-and-e-neutral-services/index

E-Service and E-Filing to be mandatory in FL

In a pair of opinions, the Supreme Court of Florida formally adopted proposed amendments to the Florida rules of court to implement mandatory electronic filing procedures for all documents filed in Florida’s courts. The proposed amendments represent a significant and important step toward the goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing or e-filing. Also in furtherance of this goal, in a separate, related case the justices adopted amendments to the rules of court to require e-mail service of pleadings and documents between parties. All 67 county clerks of court have been directed to be prepared to accept e-filings through the statewide e-portal in the civil divisions by July 1, 2012-- but a subsequent filing by the E-Filing Authority indicates several clerks are still experiencing difficulties that would prevent them from accepting electronic filings on that date. Any clerk may submit a request with the Florida Supreme Court to delay the effective date of these rules in any division or court. If such a request is granted, an Administrative Order will be issued and published. However, mandatory e-service under Florida Rule of Judicial Administration 2.516 will begin July 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. Given the delay from oral argument last year to passage of these e-rules, it is possible electronic discovery rule amendments in Florida argued earlier this year may be adopted later than expected. That would be consistent with comments made regarding the need for educating the bench and bar on the proposals to include ESI in existing civil rules. See full opinions here - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf and http://www.floridasupremecourt.org/decisions/2012/sc11-399.pdf UPDATE: 6/26/12 - Florida Supreme Court sua sponte amends its opinion to change the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101_Order_06-26-2012.pdf SECOND CORRECTED OPINION: 6/28/12 - http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf