Mediation & Arbitration (Florida Bar Exam)

Never quite know where the Florida Board of Bar Examiners will go on those multiple choice questions and a multiple choice subject that is certain to show up on the exam is Florida Civil Procedure. One area it seems they'd like students to know quite a lot about is mediation & arbitration.

Mediation is a process whereby a third-party mediator encourages the resolution of a dispute, but unlike a judge or an arbitrator, does not prescribe what that resolution should be. The process is informal with the goal of assisting the parties in reaching a resolution. Arbitration consists of an arbitrator (there can be up to 3) who listens to the facts and arguments presented by the parties and then renders either a binding or non-binding decision.

For both mediation and arbitration, the first conference must be held within 60 days of the court order. The parties then have 15 days of the order to move to dispense with mediation/arbitration on the basis that there was previous mediation/arbitration or for other good cause. 

There are two types of arbitration: nonbonding arbitration and voluntary arbitration. Nonbinding arbitration is informal. Testimony is kept to a minimum and the matters are presented primarily through statements/arguments of counsel. The arbitrators (or if there is only one arbitrator the chief arbitrator) will have 10 days after the final arbitration hearing to render a written decision and to file that decision with the clerk of court. That decision becomes final unless a motion for a trial is made within 20 days. If such a motion for trial is filed by any party, then any party having a third-party claim may file a motion for trial within 10 days of service of the first motion for trial. 

Voluntary arbitration differs in some ways. The parties by written agreement establish the hearing procedures or in the absence of such an agreement, the court will establish those procedures. The arbitrators serve the parties and file with the court a written decision within 10 days of the final arbitration hearing. The decision is appealable within 30 days to the circuit court. Review, however, is limited to review on the record for failure of the arbitrators to comply with the rules of procedure/evidence, partiality or misconduct of an arbitrator, or violation of either the United States Constitution or the Florida Constitution. 

In Florida, certain actions are excluded from both mediation and arbitration. These include bond estreatures, habeas corpus & extraordinary writs, bond validations, and civil or criminal contempt.