Oral Argument Scheduled on Rule 1.700 Proposal

The Supreme Court of Florida has scheduled oral argument for September 10, 2026 in a pending civil rules case following submission and comment period on The Florida Bar Civil Procedure Rules Committee's proposed amendments. 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 now resolved online since the pandemic. 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 increasing experience online 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. The ADR Section of The Florida Bar filed a comment to seek clarification that this also apply to nonbinding arbitration and suggesting as a practical matter, not permitting audio participation even when agreed to by the neutral conducting, takes away options and flexibility. See more here-- In Re: Amendments to Florida Rule of Civil Procedure 1.700, Case No. SC2025-2041 https://acis.flcourts.gov/portal/search/case

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

Florida Mediation Reporting Rule Comments Due 3/31

The Supreme Court of Florida's Committee on Alternative Dispute Resolution (ADR) Rules and Policy is seeking comments on proposed revisions to the Florida Rules of Civil Procedure, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure. These rules are revised to include subdivisions entitled Report of Mediation and Adjournment for Further Mediation, which are intended to compliment and clarify the scope of Rule 10.360(e), Reporting Outcome, and Rule 10.360(f), Presence, Florida Rules for Certified and Court-Appointed Mediators. With these changes, after an initial mediation session, a mediator could report agreement, no agreement, partial agreement, or adjournment for further mediation. No other descriptors, modifiers, comments, or recommendations may be included in the report unless all parties consent in writing. However, nothing in the amendment prohibits the mediator from identifying the parties, counsel, and participants present at the mediation and whether present physically or by communication technology. In a mediation involving more than two parties, a mediator may now report agreement or partial agreement as to any parties who agree and no agreement as to the other parties. The proposed revisions to the Florida Rules of Civil Procedure, the Florida Small Claims Rules, and the Florida Rules of Appellate Procedure also contain a subdivision entitled Status Reports in response to recent civil case management rules adopted by the Florida Supreme Court that have changed the way lawsuits are handled in state court with more of a federal-style scheduling track. Comments to the ADR Rules and Policy Committee should be made care of the Florida Dispute Resolution Center at: drcmail@flcourts.org on or before Monday, March 31, 2025, at 5:00 p.m. EDT. See more on the proposed language here-- https://tinyurl.com/4yj3cv5x

Comments on Attorneys Signing Settlement Agreements Due 10/1

The Supreme Court of Florida has received a petition from The Florida Bar Civil Rules Committee stemming from a case reported a couple of years ago, Parkland Condominium Association, Inc. v. Henderson, 350 So. 3d 484 (Fla. 2d DCA 2022) where the court did not enforce a deal when the attorneys signed a mediated settlement agreement, but the parties never did. The proposed rule change to Fla. R. Civ. P. 1.730 will no longer require signature of counsel to the parties on mediation settlement agreements and will permit the signature of a party representative (e.g., insurer) if they have full authority to settle. Many cases we see referred to mediation have no Certificates of Authority despite the civil rules saying they must be timely filed before mediation. Mediators compromise their neutrality when they are asked by counsel and their clients to police such compliance. The Civil Rules Committee notes that in reviewing Rule 1.730, it requires, "erroneously," a lawyer's signature on a mediation agreement as Florida law does not otherwise require it. The applicable statute merely requires that a mediated settlement agreement be "signed by the parties and, if required by law, approved by the court." See § 44.404(1)(a), Fla. Stat. Attorneys signing at the end gives a certain gravity to the mediation process and evidences they have read over it and advised the parties signing. I never saw counsel complain in decades of doing this. Comments are due by October 1,2024. Find more on case number SC2024-0774 here--https://tinyurl.com/mrxuxcmj

ADR Rules & Policy Approves Language

This week, the Florida Supreme Court's ADR Rules and Policy Committee approved in its response regarding rule amendments (by a vote of 16 to 0) my suggested change submitted through the ADR Section Executive Council comment regarding revisions to Rule 10.340(d)(2) on conflicts of interest as follows: “(2) the mediator previously provided services (other than mediation services) for, or represented one or more of the mediation participants in, the matters current case or dispute at issue in the mediation; or…" The ADR Rules and Policy Committee found this narrows the scope of the proposed language. They agree since this provision addresses “clear” conflicts of interest, which are not waivable, the scope should only be broad enough to address the harm to be avoided. The Committee’s language, “matters at issue in the mediation,” is broader than my suggested language. The broader scope would require a mediator to decline serving as a mediator even if the potentially conflicting interests are not directly related to the case or dispute being mediated. For non-waivable conflicts of interest, a narrower scope may be preferable in order to ensure that parties have the widest latitude in selecting a mediator, while still ensuring mediator impartiality. Therefore, the Committee supported narrowing the scope through alternate language and has asked the court to adopt it and other changes pending a decision to grant oral argument. See more here-- http://tinyurl.com/eedckhhj

FL Mediator Rule Comments Due 3/4

The ADR Rules and Policy Committee of The Supreme Court of Florida has proposed revisions to the rules governing certified and court-appointed mediators. While the changes are outlined in the links below and mostly consist of revisions to form such as "shall" being replaced with "must," they do have some substantive changes as requirements in becoming a certified mediator and in the conflict rules, so please consider weighing in on these amendments by March 4th. You may comment by sending your correspondence to the ADR Committee Chair, Honorable Michael S. Orfinger, Seventh Judicial Circuit, Volusia County Courthouse, 101 N. Alabama Avenue, Ste. C-443, DeLand, FL 32724, morfinger@circuit7.org, and the OSCA Staff Liaison to the Committee, Thomas A. David, 500 South Duval Street, Tallahassee, Florida 32399-1927, davidt@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The ADR Committee then has until March 25th to respond to commments. It is always important to participate in rulemaking as a member of the bar and the ADR profession so that the Committee can get proper feedback for what is actutally going on in the trenches. See more here-- http://tinyurl.com/395rat8k and http://tinyurl.com/eedckhhj

Permanent Remote Mediation Authorized By Fla. S. Ct.

This summer, the Florida Supreme Court provided permanent civil rule changes authorizing the remote conduct of certain court proceedings including mediation, appellate mediation and arbitration. The court's Workgroup on Continuity of Court Operations and Proceedings During and After COVID-19 was directed to identify whether certain proceedings, due to efficiencies beneficial to stakeholders, could continue to be conducted remotely when COVID-19 no longer presents a significant risk to public health and safety. The Workgroup determined that permanent, broader authorization for remote proceedings was warranted based on the positive outcomes and efficiencies observed during the pandemic. Beginning with Rule 1.700, Florida Rules of Civil Procedure, common to mediation and arbitration, the amended language now provides for use of communication technology (as that term is defined in Florida Rule of General Practice and Judicial Administration 2.530) authorized in mediation and arbitration by stipulation of the parties or by court order. Absent direction in the order of referral, mediation or arbitration must be conducted in person, unless the parties stipulate or the court, on its own motion or on motion by a party, otherwise orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation. Also of note, is that Rule 1.720 now states a party is deemed to appear at a mediation conference if physically present or, if authorized, participating through the use of communication technology. Please note under Rule 1.730, if an agreement is reached, it must be reduced to writing and signed by the parties and their counsel, by original signature, electronic signature, or facsimile and may be in counterparts. Importantly, the parties may not object to the enforceability of an agreement on the ground that communication technology was used for participation in the mediation conference if such use was authorized. Similar language is found in Rule 1.750 in regard to county court mediation. The communication technology provisions also apply to appellate mediation and are found in revised Florida Rules of Appellate Procedure 9.700, 9.720 and 9.740. These amendments become effective October 1, 2022 and recognize the sea change that took place during court closures. The shift to remote proceedings helped ease a backlog of cases by litigants being able to access hearings and alternative dispute resolution though Zoom and other available online platforms to resolve matters. See complete opinion here-- https://www.floridasupremecourt.org/content/download/843197/opinion/sc21-990.pdf