ALTERNATIVE METHODS OF DISPUTE RESOLUTION
[NOTE: This article is based on portions of The Reporter’s Guide to a Civil Lawsuit by Susan Tillotson Bunch, now with Thomas & LoCicero PL, in Tampa. Authored by the Media & Communications Law Committee of the Florida Bar, the handbook serves as a resource guide for members of the media about topics in the legal profession. We felt the article was so well written that it would be useful to a broader audience than just news reporters, so we have reproduced it here. We have heavily edited the material to supplement the content, and delete legal citations to make it easier to read for the layperson.]
There are several ways in which a case may be resolved by the parties before trial (or instead of filing a traditional lawsuit), with the assistance of “alternative dispute resolution” techniques.
Mediation is “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.” The parties also may stipulate to mediation. Mediation can take place in the context of a lawsuit, or as an alternative to one, but, if within a lawsuit, it does not suspend the discovery process.
The mediator may be chosen by the parties or may be appointed by the court. The chief judge maintains a list of mediators who have been certified by the Florida Supreme Court. When possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. Often parties agree on a particular mediator in order to select someone with specialized knowledge or expertise in the area under consideration.
Parties who fail to appear at mediation without good cause are subject to sanctions. The mediator controls the mediation process. Counsel are permitted to communicate privately with their clients. If the parties and mediator agree, mediation can proceed without counsel. The mediator can meet privately with the parties or their counsel.
If the mediation results in no agreement, the mediator reports this to the court without comment or recommendation. The mediator also may identify pending motions or outstanding legal issues, discovery process or other actions whose resolution could facilitate the possibility of a settlement. If an agreement is reached, it is reduced to writing and signed by the parties and their counsel. Mediation proceedings are privileged, subject to limited exceptions. Written communications in mediation are also exempt from Florida’s Public Records Act.
There are generally two types of court-ordered arbitration: mandatory non-binding arbitration and voluntary binding arbitration. In addition, arbitration often is ordered when the parties previously have agreed contractually to submit their claims to arbitration.
1. Mandatory (Non-Binding) Arbitration.
The court may direct the parties to participate in mandatory, non-binding arbitration. Unlike mediation, which is relatively informal, arbitration is similar to a mini-trial because arbitrators may administer oaths, take testimony, issue subpoenas and apply to the court for orders compelling attendance and production. The arbitrator (or arbitration panel) renders a written decision that will become final if the parties do not submit a timely request for a trial de novo. If a party requests a trial de novo and does not achieve a result that is more favorable than the arbitration award, that party may be assessed costs, including fees.
2. Voluntary (Binding) Arbitration.
The parties also may agree in writing to submit their action to binding arbitration, except when constitutional issues are involved. The parties may agree on the selection of one or more arbitrators; otherwise, they will be appointed by the court. As in mandatory non-binding arbitration, the arbitrator has the power to administer oaths, issue subpoenas, etc. A majority of the arbitrators may render a decision. The Florida Rules of Evidence apply to voluntary binding arbitration proceedings. Appeals to the circuit court are limited to statutorily defined issues, such as failure of the arbitrators to comply with procedural or evidentiary rules, misconduct, etc. Disputes involving child custody, visitation, or child support, or the rights of a nonparty to the arbitration are non-arbitrable. In addition, the court may require the parties in a medical malpractice action to submit to non-binding arbitration before a panel of arbitrators consisting of a plaintiff’s attorney, a health care practitioner or defense attorney, and a trial attorney. The panel considers the evidence and decides the issues of liability, amount of damages, and apportionment of responsibility among the parties, but may not award punitive damages. Voluntary binding arbitration is also available in medical malpractice actions.
C. Offers of Judgment.
Before trial, a party may submit a written “offer of judgment” that offers to settle a claim on specified terms, e.g., for a specified amount, etc. The other side has thirty (30) days to accept the offer in writing. If the plaintiff rejects an offer by a defendant under this section and ultimately obtains a judgment of no liability or at least twenty-five percent (25%) less than the offer, the plaintiff will be responsible for costs and fees from the date of the filing of the offer. Likewise, if the defendant rejects a demand for judgment by the plaintiff under this section, and the plaintiff subsequently obtains a judgment that is at least twenty-five percent (25%) greater than the offer, the defendant will be responsible for plaintiff’s fees and costs incurred after the date of the filing of the demand.