Tag Archive for: alternative dispute resolution

How a Mediation Checklist Can Help You Stress Less and Reach A Better Settlement Faster

Atul Gawande’s The Checklist Manifesto was a revolutionary evaluation of how basic checklists and procedures can guarantee error free success time and time again.[1] Many of us may chafe at having to following a basic list of things to do, but his book makes a simple point: no matter how expert we are, a well-designed checklist helps us do the right things, in the right order, every time. In an era when our attention is scattered and the demands on our time are increasing by the minute, it is no wonder that critical errors in many fields are not only on the rise, they are increasingly becoming the norm. The legal profession is no exception and missing critical steps in a case are increasingly common. Unfortunately, these errors lead not only to increased stress for practitioners, but also to an increase in costs in the long run for not only clients, but also the professionals serving them. For this reason, following a checklist prior to mediation- whether it is basic or detailed- may not only save you from costly errors, it may also lead to a better settlement faster. The result isn’t duplicative or wasted effort- it’s fewer mistakes, clearer thinking, and better outcomes.[2]

Why Checklists and Procedures Lead to Repeated Success

Everyone wants to be successful, but why are some people and companies more successful than others? Why can some companies repeat their success over and over, while others are a “one hit wonder” that struggle or can never repeat their initial win? The secret lies not in the “flash in the pan” ideas, but in the daily grind of showing up and doing the right and the hard – and usually boring- thing over and over. There’s hard evidence behind that claim. The WHO’s 19-item surgical safety checklist, studied across eight hospitals worldwide, cut major complications and deaths significantly-proof that a short, disciplined list can change outcomes in complex, time-pressured environments.[3] Is that list boring? Sure it is. Is there temptation to skip some items? Sure there is. But studies show that repeatedly following that simple and boring list guaranteed successful outcomes. This is a concept that is repeated over and over- whether it is McDonald’s incredible success with their “Speedee Service System” or an Olympic athlete who achieves success due to their commitment to relentless practice and exercise no matter what else might be going on.[4]

Over time, many industries, from manufacturing to the military, have realized the necessity of having procedures in place to guarantee repeated success for deliverables. In Getting Things Done, David Allen also extols the many benefits of keeping to-do items on a list to be productive, instead of stressed and distracted. It frees the mind to concentrate on other issues while keeping a place for those “must get done” items.[5] Another seminal work on the value of following procedures and lists to free the mind for deep and concentrated work is Deep Work by Cal Newport. Published in 2016, this was one of the first in-depth discussions on how distraction is leading to increased error rates and the cost of those errors not only on our professional lives, but also in our personal lives.[6] Stolen Focus by Johann Hari, published in 2024, is one of the latest books on this increasingly important topic of how our attention is not only divided, but is also increasingly for sale to the highest bidder in the digital arena.[7] It appears that distraction is here to stay, and it is time to strategize both offensive and defensive plans of attack to continue to provide the best legal service possible.

Legal organizations have reached the same conclusion: “old-school” checklists streamline practice, improve teaming, and make knowledge shareable across a firm.[8] And in negotiation scholarship, robust preparation frameworks from Harvard’s Program on Negotiation show how structured pre-work creates value at the table.[9] Put simply: checklists make good lawyers not only great, but consistently successful. While mediation and arbitration are certainly different from surgery or flying an airplane, they are just as information-dense and decision-heavy. A checklist for case events such as Mediation or Arbitration keeps advocates focused on the moves that will actually move numbers or secure valuable information that can determine case outcomes. It also helps to reduce stress and limit the unknown variables that may affect the ultimate result of the case as litigation continues.

What to Put on a Mediation-Prep Checklist

So it’s clear that a pre-mediation checklist is not only helpful, but probably needed. The question becomes, what to put in that checklist? If it is too basic, you may miss key points and still end up with avoidable mistakes. If it is too detailed, it may be so onerous to follow that it will quickly be abandoned as useless. It’s beneficial to consider your working style and set yourself up for success. Thinking in modules or core concepts can help you tailor the list by case type (PI, employment, construction, commercial, insurance, etc.). Another idea is to consider whether the case could be tried in front of a judge or jury with what you have right now and whether you would win or lose? The answers to those questions can serve as a cornerstone upon which you can strategize what might be needed if the case does not resolve at mediation and whether mediation may in fact be truly your best day for that case.

  1. Core Case File & Facts
    • Pleadings, key orders, dispositive-motion posture, outstanding discovery issues
    • Brief chronology of the case and three strongest facts / three soft spots
    • Exhibits you would actually use at trial and possibly use at mediation (with page cites)
  2. Law & Risk
    • Elements, burdens, and jury instructions that really matter
    • Best case / neutral / worst case outcomes with probability ranges
    • Litigation budget vs. verdict and collection risk
  3. Numbers
    • Damages model or valuation worksheet
    • Verdict form draft
    • Interest, fees exposure, liens/Medicare/Medicaid offsets, insurance limits, coverage defenses
    • Tax or structuring considerations for settlement (annuities, QSFs, allocations)
  4. Parties, People, and Authority
    • Decision-makers who must attend (client, carrier, board designee, etc.) and their real authority
    • Confidential stakeholder concerns (reputational risk, precedent anxiety)
    • Interpreter, accessibility, or tech needs for remote sessions
  5. Offers Strategy
    • Anchors, concessions plan (what/when/why), and walk-away position(s)
    • Cross-offer contingencies (e.g., “If they do X, we can move Y”)
    • Non-monetary terms you will trade (reference letters, transition support, training, confidentiality clauses, etc.)
    • BATNA/WATNA Reality Testing
    • Your credible next steps if no deal (hearing dates, litigation budget and spend, trial posture and date)
    • Their potential next steps and how you’ll explain them in caucus
  6. Ethics & Confidentiality
    • Mediation privilege, confidentiality rules, and local practice requirements
    • Informed-consent talking points with client (process, caucus norms, mediator’s role)
  7. Mediation Summary or Brief
    1. can help mediator unlock value
  8. Logistics
    • Venue/Zoom links, room plan, whiteboard/pads, chargers, print vs. e-signature
    • Food breaks (hungry clients make bad decisions), parking, travel buffers
  9. Settlement, Term Sheet & Closing
    • Pre-drafted term sheet or settlement agreement with blanks- this can be key to avoid blowing up an almost secure settlement
    • Authority to sign; e-signature plan
    • Scope of must have terms for releases such as lien language, no admission clauses, tax language, confidentiality carve-outs, enforcement forum, etc.

Now that we have core concepts in place, how about a detailed step by step checklist that you can use for your case? Again, it depends a lot on your practice style, how your office is structured and your work habits. There are many checklist examples online, and this footnote lists some of them for your reference.[10] But if you want to continue to DIY it for your own use, here are some ideas:

How to Build a Checklist That Works

  1. Keep it short and concrete. 25 to 40 items across the modules above is plenty. Each line should be a do/verify action (i.e. “Confirm lien payoff amount and statutory basis”), not a paragraph. This mirrors why aviation and medical lists succeed: brevity + clarity.[11]
  2. Create “pause points.” Insert natural stops (pre-brief, pre-opening, pre-first offer, pre-closing) where you deliberately run the list and recalibrate.
  3. Assign ownership. Put initials next to each item (partner/associate/assistant/adjuster). Checklists fail when they belong to “everyone” and, therefore, to “no one.”
  4. Make the numbers visible. Build a one-page valuations sheet you can update live as information shifts and keep an eye on midpoints, that can sometimes signal a soft landing for both sides.
  5. Tailor by matter type. Maintain a master list and spin off variants (e.g., bodily-injury, employment, commercial lease, construction, real estate, etc.) so you don’t have to waste time and reinvent the wheel.
  6. Test in low-risk matters first. Pilot or test the checklist in routine conferences; change as needed and iterate after each use.
  7. Train the team. Bring your staff in on using the checklist and get their feedback. Change the tasks as needed.
  8. Design for the room you’ll be in. If you mediate by Zoom, add tech checks; if in person, add print/signer logistics. (Nothing kills momentum like hunting for a charger during the final move or finding out you can’t print the settlement agreement when you need to.)
  9. Close with a written settlement agreement or term sheet- always. Bring your own template and fill it as you go. Know your local rules and case law- an unsigned agreement can kill the whole mediation.
  10. Do a post-mortem. After each mediation, spend five minutes updating the checklist based on what helped or hurt. That’s how it becomes an asset of your practice, not a one-off document.

Free for Your Use:  Mediation Prep Mini-Checklist

  1. Book Mediator and confirm virtual or in-person.
  2. Confirm attendance & authority (client/insurer/board memebrs, etc.).
  3. Update case chronology + top 3 facts/risks.
  4. Consider jury instrauctions and/or draft verdict form.
  5. Valuation sheet (best/neutral/worst; fees to verdict).
  6. Liens/offsets/coverage confirmed.
  7. Confidential client brief on process & roles.
  8. Confidential phone conference with mediator if beneficial.
  9. Mediation statement sent & exhibits pared to essentials.
  10. Agenda & process agreed with mediator.
  11. First-offer anchor and concessions plan set.
  12. BATNA/WATNA scripts/plans for each caucus.
  13. Non-monetary trades pre-approved.
  14. Logistics: room/Zoom, tech, food, printers.
  15. Draft settlement or term sheet loaded with blanks.
  16. E-signature and payment mechanics ready.
  17. Press-line or confidentiality language sorted.
  18. Post-mediation debrief scheduled.

Used consistently, a checklist like this reduces preventable mistakes, sharpens strategy, and consistently provides more predictable outcomes. For a quick downloadable version, check out our Resources page above. Especially in Florida, where Case Management Orders are bringing cases to trial within 18 months, a checklist like this helps to ensure that mediation will be the best day for the case. That’s the quiet power of a good checklist.

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[1] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

[2] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

[3] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

WHO Surgical Safety Checklist, 2009; https://www.who.int/docs/default-source/patient-safety/9789241598590-eng-checklist.pdf; A Surgical Safety Checklist to Reduce Morbidity and Mortality in a Global Population, Alex B. Haynes, M.D., M.P.H., Thomas G. Weiser, M.D., M.P.H., William R. Berry, M.D., M.P.H., Stuart R. Lipsitz, Sc.D., Abdel-Hadi S. Breizat, M.D., Ph.D., E. Patchen Dellinger, M.D., Teodoro Herbosa, M.D., for the Safe Surgery Saves Lives Study Group; New England Journal of Medicine January 2009; https://www.nejm.org/doi/full/10.1056/NEJMsa0810119

[4]Christopher Klein, How McDonald’s Beat Its Early Competition and Became an Icon of Fast Food, (May 15, 2015), HISTORY; https://www.history.com/articles/how-mcdonalds-became-fast-food-giant

[5] David Allen, Getting Things Done, 2001 and 2015,; https://gettingthingsdone.com/

[6] Cal Newport, Deep Work: Rules for Focused Success in a Distracted World, 2016,; https://calnewport.com/deep-work-rules-for-focused-success-in-a-distracted-world/

[7] Johann Hari, Stolen Focus: Why You Can’t Pay Attention, 2024; https://stolenfocusbook.com/

[8] Daniel Siegel and Pamela Myers, How old-school checklists can help you better serve clients, ABA Webinar;

https://www.americanbar.org/news/abanews/publications/youraba/2017/october-2017/use-the-old-school-way-to-streamline-your-practice–make-checkli/

[9] Katie Shonk, A Negotiation Preparation Checklist, Harvard Program on Negotiation, August 20th, 2025; https://www.pon.harvard.edu/daily/negotiation-skills-daily/negotiation-preparation-checklist/

[10] John Lande, Real Practice Systems Project Menu of Checklists for Attorneys in Mediation, Center for the Study of Dispute Resolution University of Missouri School of Law, September 24, 2024; https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=2246&context=facpubs;  The Advocate’s Mediation Checklist, https://www2.mediate.com/ICM/docs/Advocates%20Checklist%20for%20Mediation.pdf

[11] Atul Gawande, The Checklist Manifesto, 2009; https://atulgawande.com/book/the-checklist-manifesto

 

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The Success of Mediation in Florida Litigation

Florida has long been recognized as a leader in alternative dispute resolution, and mediation stands at the center of that success story. In a legal environment often defined by crowded court dockets, rising litigation costs, and the emotional toll of conflict, mediation offers a path forward that emphasizes resolution, efficiency, and control.

Why Mediation Works in Florida

Florida courts encourage mediation at nearly every stage of litigation. Under Florida Statutes Chapter 44, mediation is defined as 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.” Unlike trial or arbitration, mediation does not impose a binding decision; instead, it allows the parties themselves to craft solutions that meet their needs.

The success of mediation in Florida can be attributed to several key factors:

  • Judicial Support: Courts across the state routinely refer cases to mediation, from personal injury claims to family law disputes. In some counties, mediation is mandatory before trial.
  • Cost and Time Savings: Mediation avoids prolonged litigation and reduces attorney’s fees, court costs, and expert expenses.
  • Confidentiality: Florida’s Mediation Confidentiality and Privilege Act (§44.405, Fla. Stat.) protects what is said in mediation, encouraging open dialogue without fear of later use in court.
  • Control and Creativity: Mediation empowers parties to design outcomes that a court could not order—for example, structured payments, apologies, or creative business solutions.

Measurable Success in Practice

The statistics speak for themselves. According to the Florida Dispute Resolution Center, thousands of cases settle every year in mediation, with settlement rates often exceeding 70% in civil litigation. In family law, where emotions run high, mediation frequently results in agreements that not only settle the case but also preserve future relationships. A personal injury case, for example, may settle at mediation with both monetary compensation and agreement on structured medical care, providing peace of mind for all involved. In commercial litigation, mediation often bridges the gap between ongoing business relationships, preserving partnerships that would otherwise collapse in court. Recent statutory changes have also increased the importance of mediation. For example, Florida’s 2023 tort reform legislation (House Bill 837) altered attorney fee structures and insurance litigation strategies, pushing more disputes toward early resolution. With new limits on certain damages and the shortened statute of limitations, mediation has become an even more attractive option for litigants seeking certainty in an evolving legal landscape.

The Human Side of Mediation

Beyond numbers and statutes, mediation’s greatest success lies in its human impact. Unlike litigation, which is adversarial by design, mediation fosters communication and understanding. Clients leave with more than just a signed agreement—they leave with dignity, closure, and often, relief. For lawyers, mediation offers an opportunity to advocate for their clients in a less adversarial, more collaborative forum. For judges, it helps manage crowded dockets while delivering justice more efficiently. For parties, it provides a voice, a choice, and often, a faster resolution.

Florida as a National Leader in ADR

Florida was one of the first states to implement a statewide court-connected mediation program, and it remains a national model. With certified mediators trained under the Florida Supreme Court’s rigorous standards, parties can trust the neutrality, professionalism, and skill of those guiding their disputes. As litigation becomes increasingly complex and costly, mediation continues to stand out as one of the most effective tools in the Florida justice system. It succeeds not only in resolving cases but also in restoring peace, preserving relationships, and reducing the emotional and financial burdens of conflict. Mediation’s success in Florida litigation is undeniable. By combining judicial support, strong statutory protections, and a human-centered approach, mediation delivers results where litigation often falls short. Whether in personal injury, commercial disputes, or family law, mediation represents not just an alternative to litigation—it represents a better way forward.

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Navigating High Conflict: Tools and Insights for Tough Interactions

High-conflict situations—whether in relationships, the workplace, or society at large—can feel like emotional minefields. This experience is increasingly common: maybe you’re navigating a difficult divorce, co-parenting with an ex, managing workplace disputes, trying to stay connected to estranged family, or stuck in a romantic relationship that feels more explosive than supportive.

The good news? You’re not alone—and a growing body of research is shedding light on how high conflict develops and, more importantly, how we can move through it.

In High Conflict: Why We Get Trapped and How We Get Out, journalist Amanda Ripley explores how ordinary disagreements can escalate into all-consuming battles. She explains that high conflict often arises when identity, fear, and certainty override curiosity and connection. “High conflict is what happens when the normal rules of engagement break down—and emotion takes over,” she writes. Ripley encourages us to resist polarization and instead engage with humility and inquiry—tools that help de-escalate even the most entrenched disputes. As she puts it, “Curiosity is a powerful antidote to high conflict.” The book provides real world examples of high conflict and is an overview of this type of conflict as it operates in our broader society.

Organizations—including governments, universities, workplaces and more—are also recognizing that high conflict isn’t just disruptive; it’s costly. Over time, conflict within teams that does not get resolved can lead to loss of valuable talent, reduce employee morale and cost companies significantly in terms of lost productivity and profits. But organizations can do something about this. Carnegie Mellon University, for example, offers an online resource through its Student Affairs division that defines high conflict and provides tools for managing it: CMU Student Affairs – Civility – High Conflict. By educating students early, they aim to prevent conflicts from escalating beyond repair. Other organizations, including private companies, are increasingly reaching out to professionals that can train their employees on how to recognize and resolve these types of conflict and promote the valuable team work that is the hallmark of every successful organization.

For those in intimate partnerships, Help for High-Conflict Couples by Jacqueline Wielick and Jenny Estes Powell offers a compassionate and practical guide. The authors provide strategies to interrupt cycles of blame and defensiveness, instead emphasizing empathy, validation, and boundary-setting: “Even in the most reactive relationships, small changes in how we respond can create space for healing.” Their book includes exercises and techniques to help couples break free from painful dynamics. Additional tools are available at their website and and on their YouTube channel.

No discussion of high conflict would be complete without Bill Eddy, a therapist, lawyer, and co-founder of the High Conflict Institute alongside Megan Hunter. Eddy has written extensively on managing high-conflict personalities, and has a plethora of excellent books on dealing with this subject. A great book to start with is BIFF: Quick Responses to High-Conflict People. It offers a simple but powerful framework for communication. “BIFF” stands for Brief, Informative, Friendly, and Firm—a method that helps keep your message clear and reduces emotional escalation. Whether you’re responding to a hostile text or navigating co-parenting emails, BIFF can help you stay grounded and avoid feeding the drama.

Eddy’s book High Conflict People in Legal Disputes further examines the behavioral patterns behind prolonged legal battles—traits like all-or-nothing thinking, unmanaged emotions, and constant blame. Recognizing these patterns early is key. As Eddy writes, “High conflict people aren’t just difficult—they follow predictable patterns. Recognizing them is the first step to managing them.”

While we can’t always avoid high-conflict situations, we can control how we engage with them. Across all these resources, one message stands out: high conflict isn’t just about “difficult people”—it’s about predictable dynamics that can be understood, managed, and even changed. The key lies in our own responses. Whether you’re a professional peacemaker or someone caught in the crossfire, these insights offer clarity, hope, and a path forward.

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The Value of Mediation in Family Law Cases in Florida

When families face legal disputes, emotions run high, and tensions can escalate quickly. Whether dealing with divorce, child custody, or support issues, finding a resolution that benefits all parties involved is crucial. Mediation is an effective and often underutilized tool in Florida family law cases, offering a path to resolution that is less adversarial, more cost-effective, and ultimately beneficial for all involved.

What is Mediation?

Mediation is a voluntary, confidential process where a neutral third-party mediator helps disputing parties communicate and negotiate an agreement. Unlike litigation, which involves court proceedings and a judge’s ruling, mediation allows the parties to maintain control over the outcome and work collaboratively toward a mutually acceptable solution.

Why Mediation is Valuable in Family Law Cases

  1. Reduces Conflict and Promotes Cooperation

Traditional courtroom battles can be contentious, leading to prolonged stress and damaged relationships. Mediation fosters open dialogue, helping parties focus on problem-solving rather than blame. This cooperative approach is especially beneficial in cases involving children, where maintaining a working relationship between parents is essential for co-parenting.

  1. Cost-Effective Alternative to Litigation

Legal battles can be expensive, with attorney fees, court costs, and lengthy proceedings draining financial resources. Mediation is often significantly more affordable, as it typically requires fewer billable hours and avoids drawn-out court proceedings.

  1. Confidential and Private

Courtroom proceedings are public records, meaning sensitive family matters may become part of the public domain. Mediation, on the other hand, is a private process, allowing families to resolve disputes without public scrutiny.

  1. Empowers Parties to Make Their Own Decisions

Rather than having a judge impose a ruling, mediation allows the involved parties to craft an agreement tailored to their unique needs and circumstances. This sense of control often leads to greater satisfaction with the outcome and higher compliance rates with the agreed terms.

  1. Faster Resolutions

Court cases can drag on for months or even years, prolonging uncertainty and emotional distress. Mediation is typically much quicker, enabling families to move forward with their lives sooner rather than later.

  1. Preserves Family Relationships

Litigation can strain family ties, making it harder for parties to communicate after the case is resolved. Mediation encourages respectful dialogue, helping to preserve important family relationships, particularly between co-parents who will need to interact regarding their children.

Is Mediation Right for You?

Florida courts strongly encourage mediation in family law cases, and in many instances, it is a required step before proceeding to trial. The Florida Supreme Court has established rules governing mediation, ensuring a fair and structured process for all participants. Certified family law mediators in Florida are trained professionals who facilitate discussions, guide negotiations, and help families reach agreements that align with the state’s legal requirements.

Mediation is an excellent option for many family law disputes, but it is most effective when the parties are willing to cooperate. For most families, mediation provides a constructive and efficient way to resolve conflicts without the emotional and financial toll of litigation. If you’re facing a family law dispute in Florida, considering mediation could be the key to finding a peaceful, fair resolution. Consulting with a qualified mediator can help you determine whether this approach is the best fit for your unique situation. Mediation is a powerful tool in Florida family law cases, offering a less adversarial, more cost-effective, and emotionally supportive path to resolution. By promoting cooperation, protecting privacy, and empowering families to make their own decisions, mediation helps create lasting solutions that work for everyone involved. If you’re navigating a family legal dispute, exploring mediation could be the first step toward a more amicable future.

 

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Non-Binding Arbitration in Florida: An Increasingly Popular Option for Resolving Disputes

When disputes arise, finding a timely and cost-effective resolution is often a top priority for all parties involved. One alternative to traditional litigation is arbitration, and in Florida, non-binding arbitration offers a unique option. While binding arbitration has the power to make decisions that the parties must adhere to, non-binding arbitration in Florida allows for a more flexible approach to dispute resolution. Although it is not used consistently across all jurisdictions in the State, many Courts in Florida are increasingly requiring parties to attend both mediation and non-binding arbitration prior to trial. For the Courts, this provides a way to reduce ever increasing caseloads and clogged trial dockets. For the parties, it provides a quicker and often inexpensive way to resolve the case, short of a trial.

What is Non-Binding Arbitration?

Non-binding arbitration is a form of alternative dispute resolution (ADR) where an impartial third-party arbitrator hears the case and makes a recommendation. Sometimes there is one arbitrator and other times there is a panel of arbitrators, usually up to three. However, unlike binding arbitration, the decision (or award) rendered by the arbitrator is not final or binding unless the parties elect to make it so. This means that the parties involved in the dispute have the option to accept the arbitrator’s recommendation, negotiate further, or take the matter to court if they are unsatisfied with the outcome. In Florida, non-binding arbitration is often used in civil disputes, including personal injury cases, property damage cases, contract disagreements, and family law matters.

There are specific rules, however, as it relates to non-binding arbitration in Florida that litigators should be aware of. A recent excellent overview of these rules, procedures and other concepts to consider when handling a non-binding arbitration in Florida is provided by Tiffany Hamilton, Esq. in “Non-Binding Arbitration: Tools for Your ADR Toolbox”, Volume 11 of the Stetson Journal of Advocacy and the Law, 11 Stetson J. Advoc. & L. 207 (2024)[i]. In this article, Ms. Hamilton reviews the authority providing for the use of nonbinding arbitration in Florida and offers strategic points to consider when choosing an arbitrator, drafting the argument and more. In addition, practical materials such as Continuing Legal Education seminars from the Florida Bar can provide an overview of the nonbinding arbitration process for those that have not dealt with it before.[ii]

Recent changes to the Florida Rules of Civil Procedure have also impacted nonbinding arbitration. For example, a recent amendment to the Florida Rules in Fla. R. Civ. P. 1.820(h) provides that the party must reject the arbitrator’s decision within 20 days and “…no action or inaction by any party, other than the filing of the notice, will be deemed a rejection of the arbitration decision.”[iii]  This recent rule change is probably the result of recent cases providing conflicting guidance on what notice is sufficient when rejecting the award. A recent case highlights the dangers of not complying with the rule: In People’s Trust Insurance Company v. Hernandez, 4D2024-3274 (Fla. 4th DCA March 26, 2025), the Fourth District held that a party seeking to reject a non-binding arbitration award and proceed to trial must strictly comply with Rule 1.820(h)’s requirement of filing “a notice of rejection of the arbitration award and request for trial in the same document.”[iv] In addition, while Florida Statutes and the Florida Rules of Civil Procedure should be reviewed when handling a non-binding arbitration, many Florida Circuits now have specific local requirements and Orders that are unique to their area. Attorneys handling non-binding arbitrations should consult local rules when preparing for and handling a nonbinding arbitration.

Brief Overview of the Process of Non-Binding Arbitration in Florida

The process of non-binding arbitration in Florida typically follows several key steps:

  1. Agreement to Arbitrate: Parties can agree to submit their dispute to non-binding arbitration or the court may mandate non-binding arbitration as a pre-trial procedure for certain types of cases, especially in civil litigation.
  2. Selection of Arbitrator: The parties select an arbitrator, usually someone with experience in the area of dispute. In Florida, arbitrators may be retired judges, lawyers, or professionals with expertise in the subject matter of the dispute. If the parties cannot agree on an arbitrator, the court can assist in appointing one.
  3. Pre-Arbitration Procedures: Before the arbitration hearing, the parties typically exchange relevant documents and evidence. The arbitrator may also set deadlines for submissions or request additional information to help assess the dispute.
  4. Arbitration Hearing: The hearing is relatively informal compared to a court trial. The parties present their cases, submit evidence, and may question witnesses. The arbitrator then considers the information presented and issues an award.
  5. The Award: After reviewing all the evidence and hearing from both sides, the arbitrator issues an award, which is a recommendation on how the dispute should be resolved. This decision is non-binding, meaning that neither party is required to accept the arbitrator’s conclusion. If the parties agree with the award, they may enter into a settlement. If one or both parties disagree, they can (and must) proceed to court and file the appropriate notices and motions to continue the case towards a final hearing or trial.

Advantages of Non-Binding Arbitration in Florida

Non-binding arbitration in Florida offers several benefits:

  1. Cost-Effectiveness: Legal battles can be expensive, especially in complex cases. Non-binding arbitration typically costs less than litigation due to the shorter time frame and more streamlined process.
  2. Faster Resolution: Traditional court cases can take months or even years to resolve. Non-binding arbitration, on the other hand, is often faster, helping to alleviate the burden of long delays.
  3. Flexibility: The parties have the option to reject the arbitrator’s award and proceed to court if they feel the decision is unsatisfactory. This flexibility makes non-binding arbitration an appealing option for those who want a resolution without fully committing to a legally enforceable decision.
  4. Confidentiality: Non-binding arbitration hearings are generally private, which can provide confidentiality for the parties involved. This is particularly important in business or personal matters where sensitive information may be discussed.
  5. Preserving Relationships: Because the process is less adversarial than going to trial, non-binding arbitration can help preserve relationships between the parties. This is especially valuable in family disputes or commercial matters where future collaboration may be necessary.

Conclusion

Non-binding arbitration provides a valuable alternative to litigation for resolving disputes in Florida and has been quickly evolving for the past few years into a robust option to trial. It offers a faster, less costly, and more flexible path to resolution, while still preserving the option to pursue traditional legal action if neded. For parties seeking a way to settle disagreements without the complexity and expense of a courtroom trial, non-binding arbitration can be a viable solution.

[i] https://www2.stetson.edu/advocacy-journal/non-binding-arbitration-tools-for-your-adr-toolbox/

[ii] The Florida Bar CLE: 8576 Nonbinding Arbitration in Florida: A Colloquy between Bench and Bar – https://member.floridabar.org/CPBase__item?id=a10WQ000000ZtrFYAS; 8190 Nonbinding Arbitration Hearings: Learn How or Get Left Behind! – https://member.floridabar.org/CPBase__item?id=a10Dm000000kWSIIA2

[iii] Fla. R. Civ. P. 1.820(h)

[iv] People’s Trust Insurance Company v. Hernandez, 4D2024-3274 (Fla. 4th DCA March 26, 2025)(providing that Rule 1.820(h) will be strictly enforced, and parties must comply with its requirements if they decide to reject a nonbinding arbitration award).

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5 Tips for Successful Mediations

Mediation is a powerful tool for resolving conflicts, but its success depends on how it’s approached. Here are a few strategies to help ensure a smooth and productive mediation process:

  1. Prepare Ahead of Time: Before entering mediation, take time to reflect on your goals and understand the issues at hand. Gather any relevant information and consider your options. This preparation helps you communicate more effectively and stay focused during discussions. 
  2. Keep an Open Mind: Successful mediation requires a willingness to listen and understand the other party’s perspective. Try to stay open to different solutions and consider the other side’s position or motivation. Sometimes imagining yourself on the other side can provide valuable insight as to what may actually be their bottom line in the negotiation. Flexibility can lead to creative, mutually beneficial outcomes.
  3. Use Neutral Language: Mediations are more successful when accusatory or inflammatory language is avoided. While it can be hard, especially when emotional issues are involved, staying neutral will usually get you much further in your negotiations. Try to frame your statements in a way that fosters understanding and cooperation. 
  4. Stay Calm and Patient: Mediations can sometimes become tense or they can take a long time. Try to maintain a calm demeanor and practice patience. Some mediations are more like a marathon, instead of a sprint. Make sure you are in a comfortable location and you have access to snacks and water if the mediation is expected to last longer than a few hours. Staying composed helps keep the discussion productive and prevents emotions from derailing the process.
  5. Focus on Interests, Not Positions: Rather than focusing on specific positions, which can feel like a win-lose scenario, try to identify the underlying interests of both parties. This helps in finding solutions that satisfy everyone’s needs.

While mediation requires the involvement of all parties to be successful, with these strategies you increase the likelihood of reaching a resolution that is fair, lasting, and beneficial for all involved.

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Florida Legislature

Changes to Florida’s Rules of Civil Procedure: How ADR can help you transition smoothly

Florida’s legal landscape is always evolving, and 2025 has ushered in some important changes to the Florida Rules of Civil Procedure that will impact litigators, clients, and the courts alike. These changes reflect the ongoing efforts to streamline the civil justice process, ensure fairness, and promote efficiency. While some of the rules will apply only to cases filed after January 1, 2025, many of the rules apply to older cases regardless of when it was filed. For litigators that are already handling case volumes that are challenging, these changes may bring about additional stress and strain at a time when that is the last thing that they need.

Fortunately, Florida also has a long history of developing and promoting Alternative Dispute Resolution in its legal framework. From encouraging mediation in Family Law to promoting the use of non-binding arbitration in circuit civil matters, ADR has provided a much-needed path for resolving matters that would have otherwise clogged the court system and prevented other cases from reaching a resolution through trial.

Now, more than ever, ADR is poised to play a critical role in managing case volumes for lawyers and Courts alike in Florida. With mandatory case management orders that allow little wiggle room for continuances or extensions, initial legal strategies now need to include a robust review of the potential value of Mediation and Arbitration in that particular case. Although conflict can be challenging, reaching a resolution while advocating for their clients is what lawyers do every day, and ADR is poised to help them do just that. While 2025 will undoubtedly bring challenges to many lawyers in Florida as they adjust to this new framework, with the tools of ADR at their disposal, there is nothing that they can’t handle.

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