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COURTS ORDER LITIGANTS TO TRY AND SETTLE

Florida courts are historically underfunded. There are not enough judges to take care of the large volume of criminal and civil cases filed in Florida each year. The judiciary tries mightily to maximize use of limited judge time. A big part of the effort to make the system work more efficiently is judges ordering alternative dispute resolution. Before most cases get to trial, the judge will order the parties to either mediation or nonbinding arbitration.

The Florida Bar and judiciary annually request additional court funding from the legislature and make it clear that there is a growing and pressing need for judges. The Legislature never funds to the extent requested. In 1987, Florida's legislature adopted Chapter 44 of Florida Statutes titled Mediation Alternatives to Judicial Action. Even before the new law, judges could order the parties to engage in settlement negotiations including mediation and often did. There were many programs initiated in various judicial circuits to utilize mediation or nonbinding arbitration, especially in dissolution of marriage cases. The new law was intended by the legislature to encourage expanded use of alternative dispute resolution and reduce pressure on the courts.

The statute provides that upon request of one party, a judge must refer the case to mediation in any civil case seeking monetary damages if the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties. The statute excludes limited types of cases from the mandate. The statute served as a springboard to judges increasing referral of cases to mediation (even when nobody requested it). In Southwest Florida, it is the practice of judges to refer almost every case to mediation or nonbinding arbitration and require completion prior to the case going to trial.

Since 1987, Florida has been a leader in alternative dispute resolution and particularly mediation. Over 75% of the cases referred to mediation settle without need for trial. Nonbinding arbitration is not used as extensively, but has also reduced demand for judge time.

What is mediation? Mediation is a process by which the parties to a dispute meet with a neutral person in an effort to settle the dispute. The neutral person is the mediator and it is the mediator's job to try and get the parties to agreement. If the parties reach agreement, the lawsuit is settled by that agreement.

Selection of a mediator is an important part of the process. Judges give the parties first opportunity to select a mediator. If the parties cannot agree, the court will appoint a mediator. Mediators go through an extensive training program involving education and an apprenticeship after which time they are certified by the Florida Supreme Court to act as a mediator. Most mediators are former trial attorneys and bring their trial experience to mediation as part of their effort to resolve disputes. A mediator does not render an opinion. The mediator's sole job is to try and get the parties to agree. The mediator's fee is usually split by the parties.

The Florida Supreme Court has adopted rules governing the mediation process. The rules allow a party to ask the judge to waive mediation for good cause and even to disqualify a mediator. The rules further provide that the parties appearing at mediation must have authority to settle the case. A judge may impose sanctions if a party fails to appear at mediation.

A mediation settlement agreement effectively becomes a contract between the parties and can be enforced by the court. Enforcement of the mediation agreement is usually much simpler than the original lawsuit because terms of the settlement take the case out of the gray area of argument and into a world of more black-and-white.

Mediation does not involve presentation of evidence and argument as done at trial. There is usually an opening statement by each side presenting the strengths of that side's case and the weaknesses of the opponent. The parties most often start in a conference room but eventually adjourn to separate room and the mediator shuttles between the parties. Attorneys are present for represented parties. Court ordered mediation requires the attorneys be present.

In 2004, Florida's legislature adopted the Mediation Confidentiality and Privilege Act as part of Chapter 44 of Florida Statutes. Chapter 44 originally provided that in court ordered mediation each party has the privilege to refuse to disclose and to prevent any other person at mediation from disclosing communications made during the preceding. The Mediation Confidentiality and Privilege Act expanded the confidentiality provisions. The statute includes penalties for willfully disclosing mediation communications in violation of the statute which can include damages attorney's fees and other relief.

Judges can also order a case to nonbinding arbitration. Arbitration is a proceeding during which a third party actually renders a decision. The statutes and court rules make such arbitration nonbinding because the parties are entitled to have their case heard by a judge and or jury as a constitutional right and only if they agree that a final decision can be made by an arbitrator will the arbitration be binding.

Court certified arbitrators go through similar training to that of a mediator to be certified by the Florida Supreme Court. In nonbinding arbitration the parties usually agree on the person who will render a decision. Absent agreement, the court will appoint an arbitrator.

Nonbinding arbitration proceeds as a condensed version of what might be presented at trial. In binding arbitration, the parties put on all of their evidence much like a trial, albeit with somewhat relaxed rules of evidence and procedure. In nonbinding arbitration, attorneys present a summary of each side's case and the arbitrator enters a decision based on these summaries. Nonbinding arbitration will almost always take less than a day, even in trials that might otherwise take 2 weeks. The arbitrator ultimately renders a decision, but that decision is not binding unless the parties agree to accept it.

After a nonbinding decision is rendered, either party may request a trial de novo. In a trial de novo, the case proceeds as if arbitration never took place and the only thing the judge hears about the arbitration is that it took place. The judge may have a hunch as to which party was most favored by the decision because the unhappy party is the one requesting a trial de novo. Trial de novo is not an appeal from the arbitrator's decision

Requesting a trial de novo is not without risk. If the requesting party does not obtain a judgment more favorable than the arbitrator's decision, that party may be assessed fees and costs of the arbitration and attorney's fees and costs incurred by the other side for the trial de novo. That possibility often makes a party think twice about how unhappy they really are with the arbitrator's decision.

The parties to a dispute can always agree to alternative dispute resolution, even without involving the court. Mediation, nonbinding and even binding arbitration can be agreed before suit is ever filed. There is even a procedure available for trial by a non-judge agreed to by the parties.

Why would the parties try to avoid court? One reason would be to expedite conclusion. Trials take years. Another would be to minimize costs. Lawyers are expensive with good trial counsel charging $500 per hour or more.

The cheapest option of all is for the parties to sit down and talk. There is too often a rush to suit, encouraged by trial lawyers, and no real effort to resolve the conflict. With the right attorneys and a desire to resolve dispute rather than fight and incur expenses of a lawsuit, a lot of the cases proceeding in court could end before suit is even filed.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.