Like it or not, more Judges are turning to nonbinding arbitration to ease bloated caseloads

With most jury trials suspended for the better part of a year due to the Covid-19 pandemic and the court system facing huge backlogs of cases now that trials have resumed, nonbinding arbitration is becoming a popular tool for judges who believe it will reduce their caseloads. Nonbinding arbitration is governed by Florida Rules of Civil Procedure 1.820 and Florida Statutes 44.103. Per Statute, a judge can refer any circuit or county court case to nonbinding arbitration.

Arbitrators fees are paid by the parties unless a party is found to be indigent. Arbitrators are not allowed to charge more than $1,500 a day unless all parties agree otherwise. Live testimony and evidentiary exhibits may be presented at nonbinding arbitration and parties can seek to have witnesses or records subpoenaed by an arbitrator for good cause shown. However, no live testimony or evidence is required and nonbinding arbitrations are intended to be informal and primarily be conducted in the form of presentations and argument by counsel.

An arbitration ruling must be in writing to the parties within 10 days of final adjournment of the arbitration. The arbitrator’s decision is sealed and filed with the clerk when the parties are notified of the decision. If a party does not wish to accept the decision of an arbitrator, they may file a request for a trial de novo within 20 days. If a request for a trial de novo is not made within 20 days of service of the arbitrator’s decision, the decision is referred to the presiding judge who then enters orders and judgments as required to carry out the terms of the arbitrator’s decision, making them binding.

The potential consequences for not accepting an arbitrator’s decision include the imposition of costs and attorney’s fees against the party that requests a trial de novo. If a Plaintiff requests a trial de novo and case proceeds to trial and the Plaintiff receives a verdict at least 25 percent less than the arbitration award, costs and attorney’s fees shall be set off against the award. If there is no award or an award less than the assessed costs and fees, the court shall enter a judgment for the Defendant. If a Defendant requests a trial de novo and has a judgment entered against them for at least 25 percent more than the arbitration award, they shall be assessed costs and attorney’s fees in addition to the judgment against them.

It is important that attorneys are mindful of the applicable time frames and consequences regarding nonbinding arbitration to avoid potentially adverse consequences and to obtain the best possible results for their clients.