Page 113 - Akerman | 2016 Guide to Doing Business in Florida

11.3 Alternative Dispute Resolution

Florida has a long tradition of encouraging alternative dispute resolution (“ADR”). Essentially, ADR
enables resolution of civil disputes without an adjudication through the court system. While there are a
number of ADR methods, by far the most common are mediation and arbitration, which are addressed
below.

11.3.1 Mediation
Mediation is an informal and non-adversarial process in which a neutral third person, the
mediator, acts to encourage and facilitate the settlement of a dispute between two or more
parties. The mediator has no power to adjudicate or force a settlement; all decision-making
authority remains with the parties to reach a mutually acceptable and voluntary settlement.
Mediation is mandatory in virtually every Florida circuit court civil dispute.

Florida Statutes Chapter 44 contains general provisions on mediation and non-binding
arbitration, including:

a. With limited exceptions, the court must refer a case to mediation upon the
request of any party (§ 44.102); however, in practice, most circuit trial courts
make mediation mandatory.

b. The court may refer any case to non-binding arbitration (a truncated form of
arbitration where the arbitral ruling is only final if no party requests a trial de
novo by the court) (§ 44.103).

c. Arbitrators have judicial immunity (§§ 44.107, 682.051, 684.0045). With
limited exceptions, mediators have the same immunity (§ 44.107).

d. All mediation communications are privileged and a party may not be
compelled to testify regarding mediation discussions (with very rare
exceptions) (§§ 44.401-406).

The procedures for mediation and court-ordered arbitration are set forth in the Florida Rules of
Civil Procedure (Fla. R. Civ. P. 1.700-1.830).

The Florida Supreme Court has promulgated a separate set of Rules for Certified and Court-
Appointed Mediators which include mediator qualifications, standards of professional conduct,
and disciplinary rules (Fla. R. Med. 10.100-10.900).

As a practical matter, virtually every civil case filed in either state court or in federal district court
in Florida will result in an order requiring the parties to mediate, and the procedures for
mediation will be spelled out in the order requiring mediation. This usually occurs at the time
the case is set for trial or when the first scheduling order is entered. The court will require that
the mediation be completed by a certain date, usually some set amount of time before the
commencement of trial, and the order will establish a procedure for the selection of the
mediator and a deadline for the selection. The parties’ attorneys will usually agree upon the
selection of the mediator, but if they cannot the court will appoint one from an approved panel
of mediators.

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