Published: June 2023 
Written by: Donna Greenspan Solomon

Prof’l Airline Flight Control Ass’n v. Spirit Airlines, Inc., 65 F.4th 647 (11th Cir. 2023).  Under Railway Labor Act, a minor dispute that parties cannot resolve is subject to arbitration before adjustment board created by airline and its employees.

Landcastle Acquisition Corp. v. Renasant Bank, 57 F.4th 1203 (11th Cir. 2023).  In arbitrations governed by the Federal Arbitration Act, courts look at whether arbitration agreement signed by agent is binding on the principal.

Warrington v. Rocky Patel Premium Cigars, Inc., 2023 WL 1818920, at *2 (11th Cir. Feb. 8, 2023).  Order denying motion to compel arbitration was affirmed where appellant “substantially invoked the litigation machinery prior to demanding arbitration.”

Communications Workers of Am. v. BellSouth Telecommunications, Inc., 2023 WL 2401327, at *3 (11th Cir. Mar. 8, 2023).  Where an arbitration provision is broad, courts should look for an “express provision excluding a particular grievance from arbitration”; otherwise, “only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.”

Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A., 20-13039, 2023 WL 2922297 (11th Cir. Apr. 13, 2023).  In New York Convention case where arbitration is seated in the United States, or where United States law governs the conduct of the arbitration, Chapter 1 of the FAA provides the grounds for vacatur of an arbitral award.

Calvary Chapel Church, Inc. v. Happ, 353 So. 3d 649 (Fla. 4th DCA 2023).  School’s enrollment contract contained arbitration provision requiring arbitration of wrongful death action brought by parent whose child had died by suicide.

Lennar Homes, LLC v. Wilkinsky, 353 So. 3d 654 (Fla. 4th DCA Jan. 4, 2023).  Arbitration clause requiring arbitration for personal injuries “in the Community” required homeowner to arbitrate action against real estate developer for injuries in bicycle accident on road in community.

GR OPCO, LLC v. Murillo, 352 So. 3d 1279 (Fla. 3d DCA 2023).  Substantial competent evidence supported trial court’s finding that employee did not sign employer’s arbitration agreement and that therefore, no arbitration agreement existed.

Oana v. Solomon, 357 So. 3d 280 (Fla. 2d DCA 2023).  Where order approved arbitration award without entering final judgment but also authorized receiver’s sale of real property, the appellate court lacked jurisdiction to review the arbitration award but nevertheless had non-final jurisdiction to review the order as to the approval of the receiver’s sale of the property.

Erb v. Chubb Nat’l Ins. Co., 47 Fla. L. Weekly D2635 (Fla. 3d DCA Dec. 14, 2022).  Insurer waived its right to arbitrate by failing to timely invoke arbitration provision.

Ron v. Parrado, 48 Fla. L. Weekly D413 (Fla. 3d DCA Feb. 22, 2023).  Party may compel arbitration of agreement not containing arbitration clause if agreement incorporates a different agreement which does contain an arbitration provision.

Vitesse, Inc. v. Mapl Associates LLC, 48 Fla. L. Weekly D618 (Fla. 4th DCA Mar. 22, 2023).  Any scrivener’s error in seller’s motion for trial de novo was trivial and did not substantially impair either purchaser or trial court from having reasonable notice of seller’s desire to proceed to trial, and thus seller’s motion substantially complied with statute governing court-ordered nonbinding arbitration and rule governing motions for trial de novo.

Costa v. Miami Lakes AM, LLC, 2023 WL 2777524, at *3 (Fla. 3d DCA Apr. 5, 2023).  Non-signatory to arbitration agreement may compel arbitration of claims brought by signatory based on doctrine of equitable estoppel if signatory raises allegations of concerted misconduct by both non-signatory and one or more of the signatories to the contract; evidentiary hearing required on remand.

F.R. Aleman & Associates, Inc. v. EAC Consulting, Inc., 2023 WL 2777505, at *1 (Fla. 3d DCA Apr. 5, 2023).  Appellate court affirmed trial court’s confirmation of arbitration panel’s fee award where record contained competent, substantial evidence supporting court’s determination that the parties expressly agreed to have the arbitration panel adjudicate the attorney’s fees issue.

City of Miami v. Fraternal Order of Police, Miami Lodge No. 20, 2023 WL 2777479 (Fla. 3d DCA Apr. 5, 2023).  Police officer waived right to arbitrate grievance challenging his termination for violation of drug policy where officer actively participated in previous litigation that had already determined issues contained in grievance.

Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com. 

For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Written by: Alfred A. LaSorte, Jr.
Published: May 2023

The pandemic is finally over (more or less) and law practice has moved to the “new normal,” where working from home is an option, but many lawyers have moved back to their firms’ offices. Where does Zoom mediation fit in this new normal?

We all got dragged into the Zoom age three years ago (some, kicking and screaming) as the pandemic wreaked its havoc.  But within the past year, with restrictions loosened, in-person mediations have made a comeback of sorts.  Today they constitute perhaps 20% of my mediations.

Initially, Zoom had a learning curve.  My first mediations on Zooms seemed less effective than those in-person.  Some people were frustrated by their inability to read opponents’ body language across a web cam and computer monitor.  From 2020 through 2022, all but a few of my mediations took place on Zoom, but not by choice.  We all just made do with Zoom, as in-person conferencing simply wasn’t an option.

Over time, people became more accustomed to doing business via teleconference, and Zoom mediations improved, at least in my anecdotal experience. I’d say that at this point, Zoom mediations are just about as  effective and successful as those held in-person.

We’re all familiar with Zoom’s drawbacks – the lack of true, face-to-face negotiation, distractions allowing participants from home to zone out and lose focus. (I’ve seen parties – and lawyers – called away from their webcams mid-mediation by everything from barking pets and crying babies to laundry chores.)

Zoom does have unquestionable benefits, though.  Its screen sharing feature makes doc presentations easy.  Scheduling is easier as well – that insurance adjuster in Nashville no longer needs travel arrangements for two days out of the office, just an internet connection and webcam. Participants appreciate being able to join in from their homes or offices, or those of their counsel. It can be much less expensive as well, without the need for any travel.  And counsel attending via their office computers, with easy access to their staffs, makes preparation and circulation of settlement docs convenient and quick.

So, which should you choose for your next mediation – in-person or Zoom?

In federal cases, Zoom is the court’s preferred method. The most recent version of Southern District of Florida Local Rule 16.2, “Court Annexed Mediation,” amended last October, provides that if the parties cannot agree on whether to conduct a mediation in-person or via video conference, it takes place via video conference. “Unless the Court orders otherwise, the parties shall decide whether their mediation conference will be conducted in person or by video-conference and, if the parties cannot agree, the mediation conference shall be held by video-conference.” S.D. of Fla. Local Rule 16.2(a)(2)

State court rules show an opposite preference, namely, that mediation take place in person unless the parties stipulate to (or the court orders) a video conference. See FRCP 1.700(a): “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.”

In most cases, I prefer Zoom.  I’m happy to handle in-person mediations when parties and counsel prefer. But I’m reluctant to give up Zoom’s many conveniences.  In nearly every mediation I find the parties sharing pleadings, case law and documentary evidence on screen. Many of my mediations involve real estate disputes.  In a boundary dispute, for example, there is no better aid to analyzing a case’s strengths and weaknesses than sharing online aerial photos, depicting the locations of hedges, fences, etc., over time.  Zoom’s share screen feature is perfect for this.

The same is no doubt true in contested liability auto accident cases, for example, where accident scene and vehicle damage photos can be assessed together on everyone’s screens.

On the other hand, with Zoom you do lose a bit of the “feel” for other participant’s body language and other subtle clues to what they’re thinking that only a face-to-face conversation provides.  In some cases, this could be the deciding factor as to whether to select Zoom for your mediation or not.  But, in my experience, what you gain with Zoom usually outweighs what you lose.

Now that in-person mediation is back on the table as an option, consider the benefits and disadvantages of both alternatives and pick whichever is the best fit for your clients’ and your cases’ needs. And then go settle your case!

After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator (over 400 cases so far) and expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com).  Mr. LaSorte can be reached at (561) 286-7994 and Al@LaSorteMediation.com.

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee.