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Arbitration in 2016
M AY -JUNE 2 0 1 6 | H C B A L A W Y E R
ARBITRATION IN 2016
Clark Jordan-Holmes John W. Wilcox
www.MediationforFlorida.com Lash, Wilcox & Grace PL
www.MediationForFlorida.com
Alternative Dispute Resolution has taken center stage in litigation for many years. More recently arbitration has become a factor in many, if not all facets of mainstream civil practice. Previously, arbitration played a much lesser role for most practitioners and a major role only for specialty practices. Now, a requirement to arbitrate disputes finds its way into most commerce.
The Revised Florida Arbitration Code, F.S Ch. 682, enacted in 2013, serves as the guide for most Florida disputes subject to arbitration, the Federal Arbitration Act governing the balance. The Revised Code significantly updates and revises the prior 1957 version of the code bringing it into line with the Federal Arbitration Act. Of particular note in the revisions for all to be aware, after July 1, 2016 the Revised Code applies to all arbitration agreements, regardless of the date of agreement.[1]
The enforceability of a contract arbitration provision has long been the subject of litigation. The Revised Code now makes it clear that enforceability of such a term is a matter for courts to decide. Whether the contract as a whole is enforceable is a matter for the arbitrator to decide. Section 682.02 differentiates the issues explicitly.
Pre-hearing procedures have also been clarified by the Revised Code. Section 682.06 authorizes the arbitrator to conduct prehearing conferences to determine among other things the admissibility of evidence and whether to allow a summary determination of particular issues or the entire matter.
The Revised Code now also offers a parallel to the civil rules of discovery enabling the arbitrator to determine the ability of the parties to conduct discovery and defining the limits. Section 682.08 empowers the arbitrator to issue subpoenas for hearing or deposition, including the production of documents. The Subpoena can be enforced in any manner permitted for civil actions, and the laws compelling compliance with a subpoena apply the same as in a civil action. All provisions of law that authorize fees for witness attendance also apply and are the same as those provided by statute or rule in a civil action. §§682.08(6)(8).
The Revised Code also contains provisions authorizing the arbitrator to award punitive damages and attorney’s fees. Section 682.11(1), however, limits this power to assure that punitive damages can only be awarded where the generally applicable evidentiary standard for such an award are met and must be supported by specific findings.
One of the most significant changes incorporated in the Revised Code is contained in §682.11(2). Whereas, prior to the change the award of attorney’s fees vested in Florida courts, unless that right was waived by the parties, the Revised Code places the power to award attorneys fees in the hands of the arbitrator so long as an award would be allowable under applicable law or by agreement of the parties.
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[1] Section 682.013(4). For a comprehensive review of the history and changes to the code, see “The Revised Florida Arbitration Code”, by Craig Lewis and Juan Ramirez, Jr., The Florida Bar Journal, May 2015.
