Trend: Florida State Courts Entering Orders Requiring Non-Binding Arbitration Prior to Trial; "Proposal for Settlement" Element Based on Arbitration Award

Several Florida state courts, including those located in counties in the greater Tampa Bay area, have established a practice of issuing orders that require the parties to participate in non-binding arbitration prior to trial.   The issuance of an "Order to Non-Binding Arbitration" is frequently triggered by the anticipated length of trial.  For example, courts in Lee County have been entering orders requiring parties to participate in non-binding arbitration in cases where the anticipated length of trial is more than three days.   An example of such an order is available for download here.  

The authority for Florida state courts to order non-binding arbitration is found in Florida Statutes Section 44.103 and Rules 1.800 and 1.820 of the Florida Rules of Civil Procedure.  A court is permitted to order any contested civil action filed in a circuit or county court to non-binding arbitration, with the exception of bond estreatures, habeas corpus or other extraordinary writs, bond validations, civil or criminal contempt, or such other matters as may be specified by order of the chief judge in the circuit.

Non-binding arbitration in Florida is subject to the following rules and procedures:

  1. Arbitrator Selection.  Arbitrators shall be selected and compensated in accordance with rules adopted by the Supreme Court. Arbitrators shall be compensated by the parties, or, upon a finding by the court that a party is indigent, an arbitrator may be partially or fully compensated from state funds according to the party’s present ability to pay. At no time may an arbitrator charge more than $1,500 per diem, unless the parties agree otherwise.
  2. Arbitrator Powers.  An arbitrator or, in the case of a panel, the chief arbitrator, shall have such power to administer oaths or affirmations and to conduct the proceedings as the rules of court shall provide.  The chief arbitrator shall not have authority to hold any person in contempt or to in any way impose sanctions against any person.   The chief arbitrator may issue instructions as are necessary for the expeditious and orderly conduct of the hearing. The chief arbitrator's instructions are not appealable. Upon notice to all parties the chief arbitrator may apply to the presiding judge for orders directing compliance with such instructions. Instructions enforced by a court order are appealable as are other orders of the court.
  3. The Arbitration Hearing.  The hearing shall be conducted informally. Presentation of testimony and evidence shall be kept to a minimum, and matters shall be presented to the arbitrators primarily through the statements and arguments of counsel. Any party to the arbitration may petition the court in the underlying action, for good cause shown, to authorize the arbitrator to issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence at the arbitration and may petition the court for orders compelling such attendance and production at the arbitration. Subpoenas shall be served and shall be enforceable in the manner provided by law.  When a party fails to appear at a hearing, the chief arbitrator may proceed with the hearing and the arbitration panel shall render a decision based upon the facts and circumstances as presented by the parties present.  Any party may have a record and transcript made of the arbitration hearing at that party's expense.  
  4. The Arbitration Award. Within 10 days of the final adjournment of the arbitration hearing, the arbitration award shall be presented to the parties in writing. The arbitration decision may set forth the issues in controversy and the arbitrator's conclusions and findings of fact and law. The arbitrator's decision and the originals of any transcripts shall be sealed and filed with the clerk at the time the parties are notified of the decision.  An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court (i.e., within 20 days of service on the parties of the decision).  The decision shall not be made known to the judge who may preside over the case unless no request for trial de novo is made as herein provided or unless otherwise provided by law. If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.
  5. The "Proposal for Settlement" Component (i.e., Awarding Attorney Fees and Costs Based on the Arbitration Award if Case is Tried).  Upon motion made by either party within 30 days after entry of judgment, the court may assess costs against the party requesting a trial de novo, including arbitration costs, court costs, reasonable attorney’s fees, and other reasonable costs such as investigation expenses and expenses for expert or other testimony which were incurred after the arbitration hearing and continuing through the trial of the case in accordance with the guidelines for taxation of costs as adopted by the Supreme Court. Such costs may be assessed if:

(a)  The plaintiff, having filed for a trial de novo, obtains a judgment at trial which is at least 25 percent less than the arbitration award. In such instance, the costs and attorney’s fees pursuant to this section shall be set off against the award. When the costs and attorney’s fees pursuant to this section total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and attorney’s fees, less the amount of the award to the plaintiff. For purposes of a determination under this paragraph, the term “judgment” means the amount of the net judgment entered, plus all taxable costs pursuant to the guidelines for taxation of costs as adopted by the Supreme Court, plus any postarbitration collateral source payments received or due as of the date of the judgment, and plus any postarbitration settlement amounts by which the verdict was reduced; or

(b)  The defendant, having filed for a trial de novo, has a judgment entered against the defendant which is at least 25 percent more than the arbitration award. For purposes of a determination under this paragraph, the term “judgment” means the amount of the net judgment entered, plus any postarbitration settlement amounts by which the verdict was reduced.

Joel Ewusiak serves an arbitrator for non-binding arbitration proceedings.  For more information about Joel's services as an arbitrator, please visit the "Arbitrator" page on this website.