Published: September 2024
Written by: Ryan M. McCarthy, Esq. 

Mediation has long been a critical part of litigation for cases proceeding through Florida’s state courts. However, the Florida Supreme Court’s recent amendments to the Florida Rules of Civil Procedure underscore the importance of mediation in a changing legal landscape. The amendments, which are scheduled to take effect on January 1, 2025 (subject to comments to be made on or before August 6, 2024),[1] will more closely align Florida’s Rules with the Federal Rules, particularly when it comes to the imposition of deadlines. As such, exploring avenues for resolution will be top of mind for practitioners, as they litigate under strict case management orders and with heightened obligations for discovery and summary judgment.

The days of allowing a case to linger are gone. Practitioners will be forced to seek creative solutions to resolve cases at all stages, from early on in litigation (before substantial fees are incurred) until later points, such as the filing date of a pivotal summary-judgment motion.

Litigators, in all practice areas, have always been cognizant of the need to resolve cases expeditiously. But compound Florida’s Rule changes with increasingly cost-conscious clients, along with the advent of technology to streamline the mediation process (i.e. Zoom etc.), and it is clear to see why mediation will be catapulted to among the top case-handling considerations.

Below is an outline of some of Florida’s Rule changes that will most dramatically impact mediation, with corresponding comments:

Rule 1.200 (Case Management; Pretrial Procedure): Cases will be assigned a complex, general, or streamlined track. Deadlines in case management orders will be “strictly enforced unless changed by court order.” Completion of alternative dispute resolution will be a key deadline in streamlined and general cases. This Rule will place more attention on case management conferences with an expectation that lawyers will be prepared “on the pending matters in the case, be prepared to make decisions about future progress and conduct of the case and have authority to make representations to the court and enter into binding agreements concerning motions, issues, and scheduling.” These obligations will ensure lawyers are more prepared for mediation.

Rule 1.202 (Conferral Prior to Filing Motions): This Rule will require a movant to confer with opposing counsel, in a good-faith effort, to resolve issues raised in a motion and to certify in the motion that such conferral was completed. While some motions are exempt (such as a motion to dismiss and/or a motion for summary judgment), this Rule will compel lawyers to address and discuss cases more often. Lawyers will be required to continuously evaluate the strengths and weaknesses of their matter as motions are filed. More frequent conferral should bring about better preparation for mediation. Mediators should be ready to address pending motions from both sides.

Rule 1.280 (General Provisions Governing Discovery): This Rule will require litigants to make initial disclosures and to supplement disclosures/discovery responses. Early on, lawyers will be apprised of individuals likely to have discoverable information, documents (or descriptions) that may be used to support claims or defenses, computation of damages, and copies of insurance policies or agreements. Supplementation will be necessary if ordered by the court or if a party “learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Initial discovery will allow parties to meaningfully engage in mediation earlier as both sides will be forced to “show their hand.” With more information available, parties will be in a better position to evaluate the merits of claims and defenses while a case is young.

Rule 1.460 (Motions to Continue Trial): This Rule will provide “[m]otions to continue trial are disfavored and should rarely be granted and then only upon good cause shown. Successive continuances are highly disfavored.” Limited continuances should eliminate a fair amount of posturing. Lawyers will be obliged to have more frequent and frank discussions with clients about the chances of prevailing on summary judgment and/or at trial, which will keep expectations realistic at mediation. And realistic expectations lead to a more productive mediation.

Rule 1.510 (Summary Judgment): This Rule will mandate that within 60 days after service of a summary-judgment motion, “the nonmovant must serve a response that includes the nonmovant’s supporting factual position[.]” With legal positions surfacing quickly, lawyers will be engaging in a cost/benefit analysis, involving additional litigation activity versus advantages of settlement. Summary-judgment motions will be a hot topic for mediation, because of the tight time frame for a response.

In sum, the referenced Rule changes in the Sunshine State will shine a brighter light on mediation. More than ever before, mediation will play a vital role in managing the litigation in Florida’s state courts.

Ryan McCarthy is a partner at LaBovick Law Group. For additional ADR tips and resources, go to www.Palmbeachbar.org/alternative-dispute-resolution-committee.

[1] This article was written in July 2024 for publication in the September 2024 ADR Corner. While major changes to the referenced Rules are unlikely, the final versions of the Rules should be monitored through the effective date of January 1, 2025.

Published: JULY/AUGUST 2024

Writen by: DONNA GREENSPAN SOLOMON

Walsh Group v. Zion Jacksonville, LLC, 379 So. 3d 571 (Fla. 5th DCA 2024).  Claims for littering, trespass, organized fraud, and gross negligence were subject to contract’s broad arbitration clause.

Flying Panda Florida, LLC v. Rutherford, 380 So. 3d 529 (Fla. 5th DCA 2024).  It was the arbitrator’s role, not the trial court’s, to consider whether the exculpatory clause was valid.

Yederlinic v. Heather Hill Nursing Ctr., LLC, 49 Fla. L. Weekly D875 (Fla. 2d DCA Apr. 19, 2024).  Individual who signed arbitration provision was not acting as resident’s attorney-in-fact pursuant to a durable power of attorney, and thus, resident’s estate was not required to arbitrate negligence claim.

United States Fire Ins. Co. v. Am. Walks at Port St. Lucie, LLC, 4D2023-1784, 2024 WL 2178633 (Fla. 4th DCA May 15, 2024).  Ordering arbitration was improper before arbitrator determined that developer had validly terminated prime contract and thus had validly accepted assignment of master subcontract containing arbitration agreement.

Palacios v. Lawson, 381 So. 3d 623 (Fla. 4th DCA 2024).  Patient and company exercised their freedom to contract around Medical Malpractice Act (MMA) by agreeing to arbitrate medical-malpractice claims entirely outside MMA’s framework, and thus arbitration agreement was not void as against public policy.

Venn Therapeutics, LLC v. CAC Pharma Investments, LLC, 382 So. 3d 6 (Fla. 2d DCA 2024).  Arbitration clauses that include in their scope all claims or controversies arising out of the subject contract limit arbitration to claims having some direct relation to the terms and provisions of the contract.

Pro-Play Games, LLC v. Roger, 3D23-1458, 2024 WL 1423882 (Fla. 3d DCA Apr. 3, 2024).  Test for determining arbitrability of particular claim under broad arbitration provision is whether significant relationship exists between claim and agreement containing arbitration clause, regardless of legal label attached to dispute.

Paquin v. Campbell, 378 So. 3d 686 (Fla. 5th DCA 2024).  Equitable estoppel did not compel heirs, as non-signatories to decedent’s contracts, to arbitrate tort claims against decedent’s investment advisor.

Florida Roads Trucking, LLC v. Zion Jacksonville, LLC, 5D23-2094, 2024 WL 1594574 (Fla. 5th DCA Apr. 12, 2024).  Seller’s claims against haulers for litter and trespass were beyond scope of arbitration clause in contract of sale between buyer and seller, regarding sand used for construction; contract provided for arbitration only of controversies and claims between seller and buyer or seller and buyer’s surety, haulers were neither party to the contract nor buyer’s surety, haulers were not buyer’s officers or agents, and haulers did not receive any rights or incur any obligations under the contract.

OptumRx v. King’s Drugs, Inc., 49 Fla. L. Weekly D848 (Fla. 2d DCA Apr. 17, 2024).  California venue provision for arbitration proceedings did not preclude Florida state court from considering petitions to compel arbitration.

Zahav Refi LLC v. White Hawk Asset Mgmt., Inc., 49 Fla. L. Weekly D852 (Fla. 2d DCA Apr. 17, 2024).  A motion to confirm an arbitration award is not mandatory because the arbitration award becomes final once the arbitrator releases his finding.

Sch. Bd. of Broward Cnty. v. Smith, 384 So. 3d 248 (Fla. 4th DCA 2024).  Even though parties agree under collective bargaining agreement that arbitrator’s award would be “final and binding” on them, such award is not self-executing and must be confirmed by court of competent jurisdiction to be enforceable; while standard of review is highly deferential to arbitrator’s findings and arbitration awards can be confirmed even if legally incorrect, such award must nonetheless stay within bounds of statute governing when arbitration award can be vacated.

Fisten v. Brown, 49 Fla. L. Weekly D398 (Fla. 3d DCA Feb. 21, 2024).  Trial court had no discretion to do anything except confirm award once it had denied motion to vacate and there was no other pending motion.

Telesco Constr. Mgmt., Inc. v. Nat’l Concrete Pres., Inc., 49 Fla. L. Weekly D514 (Fla. 3d DCA Mar. 6, 2024).  Compelling production of merits discovery prior to determining arbitrability departed from the essential requirements of law, warranting certiorari relief.

Michaels v. Johnson, 49 Fla. L. Weekly D971 (Fla. 4th DCA May 8, 2024).  Plaintiff was denied due process where trial court sua sponte dismissed her action as a sanction for failure to comply with an order of referral to arbitration.

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 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. 

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

Written by: Judge Lucy Chernow Brown (Ret.)

Published: June 2024

My life as a discovery mediator began with a court order appointing me to conduct a mediation among the parties on all disputed discovery issues in a complex, multiparty case. At the time, I had not heard of the term “discovery mediator.” The order was issued in Florida’s Fifteenth Judicial Circuit by Hon. Ed Artau, now an appellate judge on the Fourth District Court of Appeal. He ordered that no discovery matter in the case be set for a court hearing unless it had first been mediated. To give the order teeth, and to start the ball rolling, he also canceled all discovery hearings already on his calendar in this case, pending mediation.

The Court’s Process
The court required a mediator’s report for every mediation session, summarizing the date, time and subject of the specific dispute; listing the parties and/or counsel in attendance; and noting whether there was agreement or impasse. In this case, I issued 21 mediator’s reports to the court. All but one of the reports were accompanied by agreed order(s) resulting from mediation. Many sessions lasted for several hours; some required a full day. Every agreed order was minutely reviewed and ultimately initialed on every single page by all counsel involved. The attorneys—at first unable to civilly discuss the disputed issues—reached resolutions with the help of a neutral mediator who had the time to listen to, read and focus on their disputes. As I became more familiar with the details, the parties agreed and consented to have the court also name me as a special magistrate for the purpose of conducting all necessary in camera inspections.

Confidentiality: A Key Advantage

The confidentiality element of the mediation process was a major advantage in working out agreements among the parties. As the discovery mediator, I quickly learned the real interests of the parties behind their pending discovery requests and/or objections in private, confidential caucuses. Once I uncovered these, compromises became easier. After several long sessions, there were fewer confidential caucuses and more joint sessions as the parties became more comfortable with the process, the mediator and each other. Another element that encouraged compromise was the positive environment provided by the law firm hosting the sessions. Lunches, conference rooms and support staff for preparing the sometimes-lengthy proposed agreed orders helped everyone work together toward a common goal.

Positive Outcomes
The discovery mediation was successful, according to the judge and the attorneys; I thought so too. Why is it relevant now? And how can you explore this option for your cases?
With the recent fast-track mandate of the Florida Supreme Court, local administrative orders requiring efficient case management and the resulting difficulty getting hearing time, discovery mediation can be a good alternative to getting bogged down in discovery litigation. It is a particularly good alternative for complex cases in which you are being stonewalled. And, yes, there is authority for the court’s referral of discovery matters to mediation—even without all parties’ consent.

Legal Authority
Most of us are familiar with the special magistrate option for discovery matters under Rule 1.490 of the Florida Rules of Civil Procedure, which requires the consent of all parties. With an uncooperative opposing counsel, the court has no power to make the appointment under this rule.
Does the court nevertheless have the power to compel discovery mediation without the agreement of the parties? Yes. And there is legal authority to support this. Florida Rule of Civil Procedure 1.700(a) authorizes a judge to “enter an order referring all or any part of a contested civil matter to mediation or arbitration.” This allows a judge to refer discovery matters to mediation, even without all parties’ consent.

Cost Considerations
Attorneys getting together, face-to-face, with an experienced neutral mediator in a conducive environment with the benefit of confidentiality were able to quickly to articulate and narrow issues, and then reach agreements to resolve their disputes. But was it more expensive for the parties? At least one experienced attorney involved thinks that the cost of the mediator’s time was less than what her attorneys’ fees would have been to prepare of all necessary legal briefs for court hearings.

Embracing an Innovative Approach
Most litigators have experienced the snowballing craziness that creates a discovery nightmare, bogging down a case. Being a discovery mediator was eye-opening. This innovative approach demands serious consideration for the cases that keep you up at night.

Judge Lucy Chernow Brown (Ret.) served Palm Beach County for 24 years as a Circuit Judge, presiding over thousands of complex cases of all types. Judge Brown now serves as a mediator, arbitrator and special magistrate. A Florida Supreme Court-certified Civil Circuit Mediator, Judge Brown is a neutral with JAMS, the international ADR provider. She may be contacted at: lbrown@jamsadr.com.

This article is posted at: www.jamsadr.com/blog/alternative-dispute-resolution, and at Law.com/ALM. It is printed here with permission from JAMS.
For additional ADR tips and resources, go to https://www.palmbeachcountybar.org/alternative-dispute-resolution-committee.

By:  Tami L. Augen Rhodes

Published: May 2024

Knock, knock…

Who’s there?

Client…

Client who?

Your client calling to say that you need to let the court know the children were brought home ten minutes late; my co-parent did not discuss our child’s soccer game with me; my co-parent gave our child chicken even after I reminded co-parent that our child needs more iron from red meat;  my co-parent could not pick up our child even though co-parent knew that I had an important work meeting and I always accommodate co-parent; and so on and so on.

While most stories that start with “knock, knock” are jokes, what I have described is no laughing matter:  it is pervasive and harming children.  The Journal of Child and Adolescent Trauma teaches, “[p]arental conflicts consistently predict negative outcomes for children.”  (V.15(3); Sept. 2022).  Why, then, is Parenting Coordination (“PC”)[1] so underutilized?

Family Law practitioners typically consider the one-and-done model of ADR – mediation.  When a Family Law case involves highly contested or high conflict children’s issues, often a Guardian Ad Litem or Social Investigation is used in litigation.  This author suggests Courts and counsel consider early PC involvement.

Florida Statutes Section 61.125 (2) states, “[t]he purpose of parenting coordination is to provide a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and, with the prior approval of the parents and the court, making limited decisions within the scope of the court’s order of referral.”

Unlike most ADR processes, an initial PC appointment can be for up to twenty-four months.  The PC can assist parents in learning communication skills for effective co-parenting; in developing a parenting plan; in implementing a parenting plan; in resolving disputes; and more.  When the PC is involved early on, the PC can help to educate the parents regarding co-parenting and assist the parents with creating a Parenting Plan.  Research shows greater compliance with Parenting Plans created by the parties versus a Court Ordered Parenting Plan.  Additionally, the PC can teach skills and put tools in place designed to minimize and effectively address conflict.  Moreover, the Court’s Order of Referral to PC can, and should, provide the PC with specific decision-making authority over non-substantive matters.  Importantly, the PC should have the ability to assist the family, and the children, in being able to lead a functioning life.  When parents need to resort to filing motions and waiting for an evidentiary hearing, a parenting dispute can take approximately three to nine months before there is a Judicial determination.  When a PC has non-substantive decision-making abilities, the parents and child(ren) have immediate access to effective ADR, which is child focused, and which enables the child to have immediate decisions to increase normal childhood functioning.  By way of example, waiting for a  Judicial determination regarding a school field trip puts the child at risk for the trip having come and gone by the time the parents are in front of a Judge as opposed to a PC who utilizes skills to assist the parents in reaching a joint decision and, when there is a stalemate, is able to make a limited decision in a timely manner.

Chief Magistrate Serpil Ergun of the Cuyahoga County Domestic Relations Court in Cleveland, Ohio undertook an extensive study on the effectiveness of PCs.  The final report as of May 2016, documents, “[t]here was a significant decrease in the number of motions filed, scheduled court events, and trials in the two years after appointment of a coordinator…. Motions decreased 56%. Court events decreased 58%. Trials decreased 32%. The average number of motions per case declined from 22.87 to 10.06.”

PCs are uniquely qualified to assist the Court: specifically, a PC must be a licensed mental health professional; a physician; a mediator with at least a master’s degree in a mental health field; or a member in good standing of The Florida Bar.  Additionally, PCs must have three years of post-licensure/certification practice; be a Florida Supreme Court Certified Mediator; complete a twenty-four-hour PC training; and comply with continuing PC education requirements and reporting.  The PC can meet with parents, children, collateral sources, schools, therapists, and others.  The PC can also recommend additional services, such as individual therapy for a parent.

Ultimately, PCs help to keep cases from excessive Court usage; teach parents skills to enhance co-parenting; and maintain the focus on the children so they can grow up free from the detrimental effects of toxic parenting and thrive based upon healthy co-parenting.

Tami L. Augen Rhodes has practiced Marital and Family Law for 25 years.  She is the Founder and President of the Palm Beach Academy of Collaborative Professionals; a Guardian Ad Litem; a Florida Supreme Court Certified Family Mediator; and a Qualified Parenting Coordinator for. For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee

[1] PC shall refer to “Parenting Coordinator” or the “Parenting Coordination ADR Process”, based upon context.

Written by: Alfred A. LaSorte, Jr., P.A.
Published: April 2024

Lawyers often tell their clients that mediation communications are privileged.  But Florida’s Mediation Confidentiality and Privilege Act, F.S. Section 44.401 et. seq., has some exceptions. 

First, the rules:

F.S. 44.405(1): “Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.”

F.S. 44.405(2): “A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.”  

“Mediation communication” includes “an oral or written statement, or nonverbal conduct intended to make an assertion,” F.S. 44.403(1), even a nod or shake of the head intended to convey “yes” or “no.”  

But it doesn’t include a participant’s observation of what happens, like watching a party leave in the middle of mediation.

A mediator “is responsible for …preserving confidentiality…” Florida Rules for Certified and Court-Appointed Mediators 10.300

“A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to be all parties.” Florida Rules for Certified and Court-Appointed Mediators Rule 10.360.  And “communications made during the process are confidential, except where disclosure is required or permitted by law. FRCCM Rule 10.420(a)(3).”

Now, the exceptions:

– Committing a crime or threatening violence during mediation is specifically excluded from the privilege. F.S. Section 44.403(1). Per F.S. 44.405(4)(a)(2), a communication “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence” is excluded. So threats of violence can be reported.

– Signed mediation written agreements. F.S. 44.405(4)(a)

– Waiver.  F.S. 44.405(4)(a)(1)

– A communication requiring “a mandatory report under Florida’s protective services laws.  F.S. 44.405(4)(a)(3)

– A communication “offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding.” F.S. 44.405(4)(a)(4).

– A communication “offered for the limited purpose of establishing or refuting the voiding or reforming of a settlement agreement…” F.S. 44.405(4)(a)(5)

– A communication “offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.” F.S. 44.405(4)(a)(6).

Whether a mediator may disclose things occurring in a mediation over a party’s objection  is quite fact-dependent.  

Some examples:

1. In private caucus, lawyer tells mediator his client has no authority to make any settlement offer, in any amount.

“Communication”?  Yes. An oral statement by a participant (lawyer) to another mediation participant (mediator).

Made during mediation?  Yes.

Do any exceptions apply?  No.

So, is it privileged?  Yes.

2. Mediator notices a party’s absence from the mediation, not through any “communication,” but because she sees them leave. Observations of what occurs (or doesn’t) are not “mediation communications,” therefore not privileged.

For a discussion of a mediator’s observations, versus mediation communications, see MEAC 2006-008.

3. In private caucus, party says he intends to physically attack the opposing party after the mediation concludes.

Privileged?  No, since it falls within the F.S. 44.405(4)(a)(1) exception for communications “[w]illfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.”

4. Insurance adjuster informs mediator that her most recent offer constitutes the extent of her settlement authority, and that she is unable to make any higher offer.

Communication?  Yes.

Made during mediation?  Yes.

Do any exceptions apply? No. MEAC Opinion 2006-003 states that while a mediator may report a party’s or representative’s failure to physically appear, it would be an ethical violation to report that a party or insurance representative who did appear “did not have full settlement authority.”

5. Counsel for one mediation party feels the opposing party’s offer constitutes “bad faith.” She files a motion for sanctions and subpoenas mediator to testify.

Is opposing party’s offer a communication?  Yes.

Made during mediation?  Yes.

Do any exceptions apply?  No. The trial court should bar mediator’s testimony.  And note – there is no “good faith” requirement in mediations anyway.  See, Avril v. Civilmar, 605 So.2d 988 (Fla. 4th DCA 1992).

Florida Mediator Ethics Advisory Committee Opinion 99-012B notes that “if subpoenaed, a mediator should either file a motion for protective order, or notify the judge in accordance with local procedures, that the mediator is statutorily required to maintain the confidentiality of mediation proceedings.”  But it concludes that if ordered to testify “the better approach would be to follow the court order,” citing a prior MEAC ruling, MQAP Opinion 96-005.

The opinion further explains that if this court order gets reversed after mediator’s testimony, the aggrieved party can always seek to have the testimony stricken.

After a long career at Shutts & Bowen LLP as a commercial/real estate litigator, Mr. LaSorte is now exclusively a mediator (500+ cases) and expert witness. (561) 286-7994;  Al@LaSorteMediation.com. Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com)

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

Written by: Donna Greenspan Solomon
Published: March 2024

Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023).  District court must stay proceedings while interlocutory appeal as to arbitrability is ongoing.

NuVasive, Inc. v. Absolute Med., LLC, 71 F.4th 861 (11th Cir. 2023).  The Federal Arbitration Act’s three-month deadline for moving to vacate a final arbitration award is subject to equitable tolling, an extraordinary remedy that is appropriate where a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.

Bedgood v. Wyndham Vacation Resorts, Inc., 88 F.4th 1355 (11th Cir. 2023).  A party that seeks to compel arbitration, but whose policies do not comply with the rules and policies of the arbitral forum, cannot compel arbitration, and accordingly, may be forced to litigate the claims it sought to arbitrate.

Smith v. Int’l Bus. Machines Corp., 22-11928, 2023 WL 3244583, at *3 (11th Cir. May 4, 2023).  Plaintiff was a day late in demanding arbitration where she submitted demand to JAMS by the filing deadline but did not submit it to employer until the following day.

Cosgun v. Seabourn Cruise Line Ltd. Inc., 23-11396, 2023 WL 4112993, at *1 (11th Cir. June 22, 2023).  An appeal may not be taken from an interlocutory order that compels arbitration and stays, rather than dismisses, the action.

Bedgood v. Wyndham Vacation Resorts, Inc., 88 F.4th 1355 (11th Cir. 2023).  The Federal Arbitration Act (FAA) provision prescribes two conditions to relief on a motion to direct arbitration, which are separate but causally related: first, the party resisting arbitration must have failed, neglected, or refused to arbitrate, and second, the party seeking to direct arbitration must have been aggrieved by that failure, neglect, or refusal.

SICIS N. Am., Inc. v. Sadie’s Hideaway, LLC, 368 So. 3d 1052 (Fla. 1st DCA 2023).  Property owner was bound to arbitration provision in agreement between general contractor and tile manufacturer where owner authorized contractor to act as its agent in purchasing tiles from manufacturer.

Beyond Billing, Inc. v. Spine & Orthopedic Ctr., P.C., 362 So. 3d 256 (Fla. 2d DCA 2023).  Parties’ execution of joint stipulated motion to amend case management order, within 20 days of arbitration award, indicated parties’ mutual desire and intent to proceed to trial, and thus trial court did not have duty to enter final judgment on arbitration award when no motion for trial de novo was filed within 20-day period.

Allison v. Grand at Olde Carrollwood Condo. Ass’n, Inc., 369 So. 3d 1200, 1204 (Fla. 2d DCA 2023).  Following non-binding arbitration, the trial court failed to properly conduct a trial de novo where it limited its role to reviewing the arbitrator’s decision as if it were sitting in an appellate capacity.Alan v. Sandy T. Fox, P.A., 48 Fla. L. Weekly D2099 (Fla. 3d DCA Nov. 1, 2023).  Rule 9.130(a)(3)(C)(iv), which designates non-final orders that “determine … the entitlement of a party to arbitration” as appealable, does not encompass matters collateral to entitlement.

Seduction Cosmetic Ctr. Corp. v. Dunbar, 48 Fla. L. Weekly D2010 (Fla. 3d DCA Oct. 18, 2023).  Trial court was required to hold evidentiary hearing to resolve parties’ competing contentions as to whether arbitration clause was triggered.

Labelle v. Berenson LLP, 3D22-2113, 2023 WL 9051720, at *1 (Fla. 3d DCA Dec. 26, 2023).  Where an arbitration provision in an attorney’s fee agreement fails to include the requisite notice to seek independent counsel, the provision is in violation of Florida Bar Rule 4–1.5(i) and unenforceable on its face. 

Barton Protective Services, LLC v. Redmon, 48 Fla. L. Weekly D1560 (Fla. 3d DCA Aug. 9, 2023).  Defendant presented colorable entitlement to relief from judgment based on excusable neglect after failing to timely move for trial de novo following nonbinding arbitration, and thus trial court exceeded its discretion in failing to conduct evidentiary hearing.

M.P. v. Guiribitey Cosmetic & Beauty Inst., Inc., 48 Fla. L. Weekly D1947 (Fla. 3d DCA Oct. 4, 2023).  A litigant must establish both procedural and substantive unconscionability to avoid arbitration.

Factor Brokers, Inc. v. J&C Enterprises, Inc., 48 Fla. L. Weekly D1874 (Fla. 3^rd DCA Sep. 20, 2023).  A nonsignatory to an arbitration agreement can be bound to it via assignment.  However, an evidentiary hearing is required for a court to determine the existence and validity of the assignment.

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. 

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

Written by: David Lucey
Published: February 2024

Mediation participants and counsel often ask for the mediator’s opinions and/or advice.

These requests create potential ethical issues. Mediation is a consensual process wherein the participants reach a resolution of their choosing with the mediator acting only to facilitate that process.

Rule 10.310(a) reads as follows:

(a) Decision-Making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.”

See also the Committee Notes to Rule 10.310 that read in relevant part:

“It is critical that the parties’ right to self-determination (a free and informed choice to agree or not to agree) is preserved during all phases of mediation. A mediator must not substitute the judgment of the mediator for the judgment of the parties…”

However, Rule 10.370(a)  reads in relevant part:

“(a) Providing Information. Consistent with standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.”

But see 10.370(c);

“(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.”

Where is the line between permissible sharing information about the merits of the case and impermissible predictions about the outcome?

STICK TO FACTS when responding to questions such as following;

“What will going to trial cost?”- Does the mediator have direct experience in trying a similar case? If so, one may share that experience but emphasize that each case is unique.

“What will Judge X do about issue Y?”; A mediator may presumably share his/her experience with Judge X on issue Y, as long as the facts and issues are the same or very similar, but again emphasize each case is its own creature.   

“What do you think we should do?” DANGER! Refer to the exact language in Rule 10.370 (c). Answer that question with a series of questions. Make sure the series includes questions about what outcome the party desires and what they are willing to do or give up to achieve that outcome.

The interplay of Rules 10.310 and 10.370 requires a careful balance. A mediator who does not provide any input based on his or her knowledge or experience is nothing more than an overpriced messenger service. However, a mediator must not advocate or appear to advocate for any particular outcome.

If a party or their attorney truly desires an evaluation, a mediator may offer his / her services for early neutral evaluation (ENE), but he/she must CLEARLY STATE in the retainer/engagement letter that this is the nature and purpose of the services. The retainer/engagement letter should specifically state that the ENE process will NOT satisfy an order that the parties engage in mediation. I strongly recommend having the parties and their counsel sign and initial any such retainer.

All mediators have a responsibility to the parties, to the Courts and to the profession to maintain mediation as a truly impartial and consensual process wherein the parties determine their own outcome.  Any perception of bias or coercion by any mediator is not only contrary to the rules but will also cause the public to lose faith in the mediation process. By avoiding any temptation to push parties toward the mediator’s preferred result the mediator will, in the long term, enjoy better results, happier clients and will help uphold the purpose of the mediation process.

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David Lucey has been a member of the Florida bar since 1990 and a Florida Supreme Court certified circuit court mediator since 2009. Mr. Lucey’s practice, as both Attorney and Mediator, encompasses multiple areas, including civil, litigation, family law, and condominium/homeowners’ association law. Mr. Lucey is available at 561-632-6921 or DCLLAW678@gmail.com.  For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Written by: Alfred A. LaSorte, Jr.
Published: January 2024

A common mediation complaint is that the other side is negotiating in bad faith, usually prompted by dissatisfaction with their offers or demands.  “Their nuisance-value offer is insulting! They’re not here in good faith!” or “That offer is less than they offered a year ago. You can’t move backwards.  That’s bad faith!” or “Plaintiff’s demand is higher than they could ever get on their best day in court. That’s bad faith!”

A mediator helps the parties reach an acceptable settlement. (Most mediations do settle. I confess to taking it personally when they don’t!)  I understand parties’ frustration when the other side takes unreasonable positions, making settlement less likely.

But many attorneys misunderstand what parties are, and are not, obligated to do in court-ordered mediation. In the absence of a court order to the contrary, parties are under no obligation to make “good faith” offers.

Note – Some courts’ local rules impose a good faith requirement on parties’ mediation conduct.  See, Local Rule 9019-2(C)(4), U.S. Bankruptcy Court, Southern District of Florida: mediators “shall report to the court the failure of any party to participate in the mediation process in good faith.” This reporting obligation conflicts with the Florida Mediation Confidentiality Act, F.S. Sections 44.403 and 44.405. See, MEAC Opinions 95-009, 2001-004 and 2004-006.  (A similar provision was removed from Middle District of Florida’s Bankruptcy Local Rules.) Whether such rules are enforceable is beyond this article’s scope.

In Avril v Civilmar, 605 So.2d 988 (Fla. 4th DCA 1992), the Fourth DCA took on this issue.  There, mediation occurred early in the case, when little discovery had occurred. The defendants offered $1,000.00.  Plaintiff’s counsel moved for sanctions, asserting they acted “with unclean hands and not in good faith.” The trial court agreed, granting sanctions against the defendants. 

In reversing the sanctions order, the Fourth District pointed out that, while parties are required to 1) attend court-ordered mediations (FRCP 1.720(f)), and 2) comply with mediated settlement agreements (FRCP 1.730(d)), there is no requirement that any party make any offer in any amount:

At bottom, plaintiff’s only basis for sanctions is merely that defendants were unwilling to make an offer of settlement satisfactory to him. The mediation statutes, however, do not require that parties actually settle cases. [Florida Statutes] Section 44.1011(2), explains that mediation “is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.”

In mediation, decision-making authority rests with the parties. It is clearly not the intent to force parties to settle cases they want to submit to trial before a jury. There is no requirement that a party even make an offer at mediation, let alone offer what the opposition wants to settle. (Emphasis added.)

Take a moment and let that sink in. Avril is thirty years old, but is still good law. See, Massey v Beagle, 754 So.2d 146 (Fla. 1st DCA 2000); MEAC Opinions 2001-004, 2004-006, and 2012-005.

Parties are constitutionally entitled to their day in court and cannot be forced to settle. Your opposing party’s intransigence does not create a remedy when mediation fails.  Note – it’s different where a party fails to appear for a court-ordered mediation, or to have required settlement authority, or to bring an insurance representative, if required by the Court’s mediation order. This article only focuses on bad faith claims based on dissatisfaction with opposing parties’ offers.

So, what can you do if the other side isn’t playing fair? (Hint – don’t file a sanctions motion.)  First, remember that while most mediated cases settle, many don’t. That’s why we have courtrooms.  An opponent may seem intransigent, but that’s their right.  That’s how our system works.

Try viewing the case from the other side’s point of view, to better understand their motivations.  Maybe this is “bet the company” litigation where a loss could put the company out of business, or one where a settlement could open the door to other claimants.  There may be extrinsic pressures  preventing a defendant from offering an amount it might otherwise offer. Similarly, some plaintiffs demand unreasonable amounts out of the gate, hoping to leave themselves some room to maneuver.  A demand higher than a plaintiff’s “best day” in court will understandably be seen by the other side as bad faith.

My advice? Be reasonable in your demands and offers, regardless which side you’re on.  If the other side isn’t reciprocating, let your mediator talk to them. Often, unreasonable demands and offers result from failure to appreciate the risks and expenses of a trial.  A mediator can help educate parties, leading to more realistic offers.

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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 500 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/

Published: December 2023
Written by: Damary V. Stokes

A divorce can be a stress-induced, chaotic time in people’s lives.  Selling one’s home, splitting holidays with the children, and dealing with the reality of a one-income household can all bring on high emotions.  In most cases, the problem isn’t that high-conflict people are bad people or bad parents; they just have more limited coping skills and need help reframing their perspectives in order to work cooperatively for the good of the family. As a mediator, being empathetic can be one of your “superpowers” in situations where both parties are high on emotions.   Empathy absorbs tension. 

A structured mediation process with appropriate support can make all the difference.  So, how do you define a high-conflict case? Some will say that all divorce cases are high conflict.  In my experience, however, it usually involves two people with deeply embedded hostility, whose modality of dealing with stress is attack.   As a mediator, being able to DISARM the hostility in the room allows parties to have a clear mind in order to make the best decisions for their family.  In law school, one of my studying tools was using acronyms to help me remember rules of law.  Using the acronym DISARM can help mediators disarm the hostility in the room, in turn facilitating open communication in a  productive and peaceful manner. 

The “D” stands for Defuse the Situation.  In order to defuse the situation, we need to address the conflict as soon as you see it.  Don’t wait and think it will smooth over.  Address it head on so the parties can address it and focus on the more important things.  Asking parties what they don’t like about the situation and what they would like to see done differently can be an effective way to communicate because it engages the problem-solving side of the person’s brain, which can break their pattern of attacking the other side or otherwise create drama. 

The “I” stands for Ignore the Words. I know, it seems to be counterintuitive to what we know.  As mediators, we are required to be active listeners.  I am not suggesting that we shouldn’t be, but ignoring the words to identify the emotion that the party is showing and expressing that emotion can be an effective way to de-escalate a hostile angry person quickly and effectively.[1]  It’s a different way of listening and responding that turns out to be a powerful tool. 

 The “S” stands for Say the Emotion.  Once you have listened for the emotion, state the emotion in a short declarative “You” statement. 

The “A” stands for Acceptance.  Helping parties picture the new reality of their new normal can help people accept that they may have to downgrade in size of home or won’t see the children on an important holiday every year.  As a litigator, I would always compare a divorce as a death to my clients when they became emotional.  So much is lost in a divorce, not just money, but time with the children, loss of relationships with relatives from your spouse, etc. 

The “R” stands for Reframing.  Reframing can be used for many things when managing conflict. For example: defusing inflammatory language, refocusing attention, acknowledging strong emotions in a productive manner, and translating communication so that it is more likely to be heard and acknowledged by other parties.

 The “M” stands for Manage.   Managing the expectations of the parties can help the parties keep an open mind on different alternatives and new ideas to help resolve their issues.    Caucuses is a great place to do so.  Caucuses create a safe environment for a “reality test” of the positions of each party.  In other words, the caucus is a good time for a mediator to help each client identify the strengths and weaknesses of their case. Exploring these concerns in the privacy of the caucus can encourage a party to modify expectations and demands, a vital step if there is to be a voluntary agreement.

Damary V. Stokes has been a member of the Florida bar for over 15 years and was previously appointed as a General Magistrate for the 15^th Judicial Circuit.  She is currently a fulltime mediator with Matrix Mediation and an adjunct professor at her alma matter law school, Nova Southeastern Shepard Broad Law Center.  Damary can be reached at 561-247-0489 or via email at damary@matrixmediation.com or www.matrixmediation.com.

[1] De-escalate: How to Calman Angry Person in 90 seconds or less, written by Douglas E. Noll

Published: November 2023
Written by: William J. Cea

I previously wrote about why I was sticking with Zoom for mediation despite the easing of Covid 19 restrictions. Having now mediated via Zoom for over three years, I am sticking with it. As everyone knows, mediation is intended to be an informal process, founded upon the principle of self-determination. While a mediator lacks authority to make any decisions or impose a resolution on the parties, my number one ask of the parties is for patience. Mediation is a process that requires patience, which is fostered by Zoom.    

During the initial orientation session, I routinely give my thoughts on the importance of patience. Oftentimes, people are participating in mediation for the first time. They are anxious, stressed and concerned with decisions that may need to be made. Participants typically expect to “hit the ground running” and ask how long the mediation will last. These pressures and feelings are only compounded if participants have spent significant time and expense planning, traveling, and everything else that goes into an in-person session.  

I understand that some believe that in person mediation is favorable. In my experience, however, not only is there no drop off by using Zoom, but the tension and frustration level that may be encountered is only heightened by in person mediation. This is particularly true when one or more parties are not fully prepared for mediation and/or there are impediments to reaching a final resolution. In such situations, it is far easier and less costly to switch gears and discuss an adjournment or process as part of a Zoom session than after everyone has traveled and gathered.  

For example, if it turns out that there is more discovery or investigation that is needed before the parties can meaningfully resolve certain issues or quantify damages, wouldn’t it be better to find that out in a Zoom session than travel to find that out? This is not an infrequent occurrence in construction defects litigation. For example, parties may have identified issues with constructed improvements, but are still investigating the extent and expense of any necessary repairs. 

Consider the time, expense, and aggravation impact on the process if parties believe traveling to an in-person mediation was a waste of time. Contrast to an initial Zoom session where issues are discussed and impediments to reaching a final resolution are hashed out. The frustration is far less when the overall time and expense of mediation is limited.  

Additionally, in multi-party construction litigation there are routinely parties that may not need to be present or participate all day. For example, a subcontractor or design professional that is only tangentially involved in the case. In these cases, it is far easier to provide the party with the opportunity to tend to other business and have them patch back into Zoom when needed.  

Similarly, participants may have scheduling restrictions that could prematurely end the mediation. What if instead, a participant could leave the Zoom to pick up a child and patch back in via Zoom. Other participants could continue to work without feeling that someone has left the in-person session creating unnecessary frustration or an impasse. 

There is also the time and expense of experts to consider. Experts can attend remotely, make a presentation, for example, and then participate on an as needed basis. If an expert is required to travel and attend mediation in person, there will be significant expense and added pressure. Hence, another reason that Zoom assists the parties. 

Finally, I have not seen a drop off on the ability to memorialize settlement agreements. To the contrary, when attorneys participate from their own workspace, they more easily generate and circulate settlement agreements. It is also easy to have counsel join the mediator in a virtual breakout room to discuss the settlement agreement and revisions or modifications that may be needed. Whether simply scanning signatures or use of virtual signing technology, drafting and execution of a settlement agreement is no more difficult using Zoom. In fact, there may not be anything more frustrating to parties that have had a long day at an in-person mediation to learn that the attorneys still need to put pen to paper at or after dinner time. Instead, if mediating via Zoom, the attorneys can and should be thinking in terms of circulating a draft settlement agreement via a privileged email as part of the mediation process.  

Thus, if mediation is supposed to be informal, flexible and conditioned on self-determination, doesn’t it make sense to provide the flexibility that Zoom provides? The mediator and the parties are also mutually benefitted if the mediator focuses on the mediation and not sitting in traffic and taking the time and energy away from preparation and focus on the day. Accordingly, this is why I am “still” sticking with Zoom for mediation. 

William J. Cea, Esq. is the current Co-Chair of the Palm Beach County Bar Association’s ADR Committee. He is also a Florida Board Certified Construction Attorney and Supreme Court Certified Circuit Civil Mediator. Having practiced law for over 30 years and mediating matters 2011, Mr. Cea now works as a mediator on a full-time basis and can be reached at (954) 494-3239 or wjc@inkedmediation.com.  

For additional ADR tips and resources, please go to the ADR Committee page of the updated Palm Beach County Bar Association website at: www.palmbeachbar.org.