Rare Florida Case Addresses Arbitrability

This year, a Florida district court of appeal chose to delve into what they saw as a "rather arcane" issue in arbitration of who decides whether a dispute is subject to a contract's arbitration provision: an arbitrator or a judge? There are many recent decisions from around the country deferring to the arbitrator. However, the majority explains the contract's provision in this case did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability. Unbeknownst to the renter of an Airbnb, the host had installed hidden cameras throughout the unit. Plaintiff alleged that Defendant secretly recorded the entire stay in the unit. For this violation of privacy, a lawsuit was filed in state court. Airbnb then filed a motion to compel arbitration. Airbnb argued the claims were subject to arbitration through Airbnb's Terms of Service, under which the renter agreed to be bound to pursuant to a "clickwrap" agreement. The arbitration provision contained fairly standard language such as "You acknowledge and agree that you and Airbnb are each waiving the right to a trial by jury." The court held that the clickwrap agreement's arbitration provision and the AAA rule it referenced that addresses an arbitrator's authority to decide arbitrability did not, in themselves, arise to "clear and unmistakable" evidence that the parties intended to remove the court's presumed authority to decide such questions. The evidence on what these parties may have agreed to about the "who decides" arbitrability question was considered ambiguous. Therefore, the trial court retained its presumed authority to decide the arbitrability dispute. A conflict with decisions from other districts was certified. See full opinion here-- https://tinyurl.com/y4oyxsgv

FL Courts Largely Remain Closed

Even with a falling case trend of recent Covid-19 statistics, the courts around the state are in phased reopening status, a daily snapshot of which can be found at the link at the end of this update. The Supreme Court of Florida's evolving Emergency Procedures orders have focused on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." This is good news for parties and their counsel who can't get to a jury just yet. Remember, some 98% of cases settle before trial. A few circuits have engaged in the limited pilot program of remote trials with mixed reviews. At present, all courts remain at either Phase 1 or 2 in this continuing pandemic. As a reminder, Phase 1 means in -person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare. Phase 2 encompasses limited in-person contact is authorized for certain purposes and/or requires use of protective measures. Phase 3 states in-person contact is more broadly authorized and protective measures are relaxed. Finally, one day (hopefully next year) we will get to Phase 4 when COVID-19 no longer presents a significant risk to public health and safety. In the meantime, call your mediator and get those pending matters settled! See more here in this updated color-coded guide-- Court Phased Opening Status

Revised Guidelines For FL Phased Court Operations

 

This week, the Supreme Court of Florida amended guidelines for the four-phased timeline that will govern the return to normal statewide court operations. The four phases were established in prior orders issued since the state courts began pandemic operations in March, all based on recommendations of a COVID-19 Workgroup and general public health guidelines. The Workgroup’s mission is to find ways for courts to operate as fully as possible during each phase of the pandemic. The Workgroup is chaired by Ninth Circuit Judge Lisa Munyon from Orlando. The amendments pertain to the so-called Comprehensive Measures and the Public Health & Safety Precautions that provide standards for pandemic operations in the state courts. They make the following major changes: 1) Provide updated criteria for the transition to different phases 2) Require a human resources policy at each court to address potential COVID-19 exposure of court employees and judges 3) Update health screening criteria for entry into a courthouse  4) Provide updated guidance for courts in monitoring local conditions and public health data when expanding in-person proceedings and 5) Provide a methodology to determine deteriorating local health conditions that would require an amendment to a local operational plan or a return to an earlier phase. Florida’s courts have been operating under emergency guidelines since March when the court suspended jury trials and took other actions restricting potential disease spreading activities in the state courts. Some limited jury trials have resumed in parts of the state using remote technology for all or part of the proceedings (refer to my prior post) See more in revision 6 of the COVID-19 admin order here-- https://tinyurl.com/yywqmeb6

No Takers On Virtual Trials In Orlando

While the 4th and 11th Judicial Circuits of Florida have utilized remote technology in selecting jurors and trying cases during COVID-19 court closures, the 9th Judicial Circuit has yet to attract parties and counsel despite its selection for the pilot program authorized by the Supreme Court of Florida. As such, the court has even created wanted posters: 

The Ninth Judicial Circuit Courts have been selected as one of only five (5) sites in the State for the Remote Civil Jury Trial Pilot Project!* 

              

Civil jury cases that meet the following five (5) criteria: Two (2) parties only; In-person jury selection may be accomplished in two (2) hours or less for each party; The evidentiary portion of trial can be completed remotely in less than two (2) days via Zoom, Teams or WebEx (instruction, closings and deliberations to occur in person); The case is ready for trial in July 2020; and, Both parties consent to a remote trial in the pilot project and waive any appellate issue as to the manner in which the case was tried. If you believe you have a case that meets all the criteria, and you want to be on the cutting edge of trial law in the entire United States (maybe even the whole world!), contact your division trial judge in Orange or Osceola for more details immediately. There are limited spots for this opportunity! All trials must be completed by October 2, 2020. Be among the very first in the Central Florida community to try a case remotely! If you have any questions about the Civil Jury Trial Pilot Project, please contact Judge Lisa Munyon at 40orange@ninthcircuit.org

*For additional details, see Fla. S. Ct. AOSC20-31 and your Orange/Osceola division trial judge. 

So far, the results from other jurisdictions have been encouraging with some anecdotes to be sure! See more here-- https://tinyurl.com/yyv73smk

Orlando Mediator's 400th Post! Standard of Review for Settlements De Novo

A District Court of Appeal (DCA) in Florida has concluded the standard of review of a trial court’s decision under section 44.405(4)(a)5. of the Mediation Confidentiality and Privilege Act, regarding whether a confidentiality or privilege attaches to a mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation,” is de novo. In the recent decision of Brickell Financial Services - Motor Club, Inc. v. Road Transportation, LLC, on remand the trial court was instructed by the Fourth DCA to weigh the settlement accounting, along with the parties’ mediation communications, and any other admissible evidence, in determining whether a meeting of the minds occurred regarding the dollar amount to which the term “Settlement Sum” referred and, if so, what that amount was. They cited a prior decision in DR Lakes Inc. v. Brandsmart U.S.A. of West Palm Beach, Inc., 819 So. 2d 971 (Fla. 4th DCA 2002), which pre-dated the legislature’s enactment of section 44.405 in 2004, but interpreted section 44.405’s predecessor, section 44.102(3), Florida Statutes (2001). That was after initially stating “all mediation communications shall be confidential,” the legislature created an exception in section 44.405(4)(a)5. for any mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.” The Fourth DCA reminded parties and the trial court that a party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement. See more here-- https://bit.ly/3eyYP5I

ADR Rules & Policy Petition: Comments Due 7/31!

The ADR Rules & Policy Committee of The Supreme Court of Florida has petitioned the court for the passage of amendments that would require all mediators who mediate actions filed and pending in any Florida court be subject to Parts II, Standards of Professional Conduct (ethical standards), and III, Discipline (disciplinary process), of the Florida Rules for Certified and Court-Appointed Mediators, regardless of whether or not a court order of referral has been issued. The Committee also recommends the addition of corresponding language to Rules 10.200 and 10.700, Florida Rules for Certified and Court-Appointed Mediators. The amendments are designed to remedy two shortcomings in the existing rules. First, mediators who are not certified are currently not subject to the rules if they mediate a filed court action before an order of referral is issued. Second, although it is the Committee’s opinion that uncertified mediators selected by the parties, but not appointed by a specific court order after review by the presiding judge as required by the procedural rules, are subject to the ethical standards and disciplinary process, the Committee believes there is a dispute regarding whether a general order of referral suffices to constitute a court appointment. This petition is designed to remedy those issues. The amendments submitted in this petition originated in 2017 as a Committee proposal that would have required all mediators of state court trial and appellate cases be Florida Supreme Court certified, with appointment restricted to their subject matter areas of mediator certification (mandatory certification was also supported by a majority of the Executive Council of The Alternative Dispute Resolution Section of The Florida Bar). Comments must be filed by July 31, 2020, after an extension was granted. See more here-- https://bit.ly/36ZMzIz

New Admin Order: Orange-Osceola Courts Opening

Please take note this morning that everyone entering the courthouses in Orlando and Kissimmee will be required to wear a mask and undergo a health screening with a temperature check before entering the building. Masks shall be worn in all public areas of the court facility, including courtrooms or hearing rooms, unless the Judge or Judicial officer authorizes its removal. Per the Administrative Order by Chief Judge Myers, all persons will be checked for their body temperature using an infrared or other non-contact temperature device before entrance to a court facility. Any person who registers a body temperature of 100.4 degrees or greater shall not be permitted to enter the court facility. In the event an individual refuses to undergo a health screening or temperature check, or refuses to wear a mask for entrance to the court facility, the security personnel or other person performing the health/temperature checks shall attempt to obtain and record the same information described above. Once the information is obtained, the information shall be provided to the appropriate Judge, Judicial Officer, Clerk, or other court facility occupant so that alternate arrangements can be made for the person, such as a remote appearance, rescheduling a hearing, or other measures, as necessary. In regard to civil proceedings, according to last week's judicial town hall meeting, remote hearings are still a priority and dispute resolution via electronic means is still encouraged during COVID-19. UPDATE: Court returned to Phase 1 restrictions due to spiking Coronavirus numbers June 23, 2020. See full order here- https://bit.ly/2yPCZLA