Middle District of Florida
IN BRIEF
Process summary
Arbitration.
The Middle District of Florida is one of ten districts authorized by 28 U.S.C. §§ 651-658 to provide mandatory, nonbinding court-annexed arbitration in cases involving monetary claims only of $150,000 or less. See below.
Mediation.
Under the district's mediation program, established in 1989, most civil cases are eligible for mandatory referral at the discretion of the assigned judge. See below.
The court's general policy is that cases will not be referred to more than one form of ADR. On occasion, however, referral to both arbitration and mediation is ordered by the assigned judge sua sponte or at the request of the parties.
Judicial settlement conferences.
Local Rule 3.05 mandates preliminary pretrial conferences in trial-track cases and permits scheduling of preliminary pretrial conferences in other cases. Settlement possibilities are discussed at these conferences.
Of note
Obligations of counsel.
Before the preliminary pretrial conference, counsel are required to discuss ADR and settlement among themselves and in the case management report they submit to the judge.
Information from court.
Written descriptions of the court's arbitration and mediation programs are provided to all counsel at the time of referral to ADR.
Evaluation.
The court conducted an evaluation of its arbitration program in 1986 and continues to monitor its arbitration and mediation programs. A Federal Judicial Center study of the arbitration program is reported in Barbara Meierhoefer, Court-Annexed Arbitration in Ten District Courts (Federal Judicial Center 1990).
For more information
Susan H. Walsh, Operations Chief, 813-228-2739
IN DEPTH
Arbitration in Florida Middle
Overview
Description and authorization.
The Middle District of Florida is one of ten districts authorized by 28 U.S.C. §§ 651-658 to provide mandatory, nonbinding court-annexed arbitration in cases involving money claims only of $150,000 or less. Under the program, which was established in 1984, eligible cases are automatically referred to arbitration shortly after the case is at issue. The arbitration hearing is generally held within 110 days of referral, and three arbitrators usually preside. Parties may also consent to arbitration in any civil case. The program is governed by Chapter 8 of the court's local rules.
Number of cases.
Between January and November 1994, approximately 500 cases were referred to arbitration.
Case selection
Eligibility of cases.
Eligible cases are those involving monetary claims only of $150,000 or less, exclusive of interest and costs, and with no substantial nonmonetary claims. In addition, if the United States is a party, arbitration is ordered in Miller Act or Federal Tort Claims Act cases within the monetary limit. If the United States is not a party, cases involving money damages of $150,000 or less, exclusive of punitive damages, interest, costs, and attorney fees, are eligible if they arise under the following statutes and rules: 28 U.S.C. § 1331 and the Jones Act; 46 U.S.C. § 688, or FELA; 45 U.S.C. § 51; 28 U.S.C. §§ 1331 or 1332 arising out of a negotiable instrument or a contract; or 28 U.S.C §§ 1332 or 1333 and Fed. R. Civ. P. 9(h) to recover for personal injuries or property damage. Cases that exceed the automatic referral monetary limit may also be mandatorily referred to arbitration on a case-by-case basis if the assigned judge determines that arbitration may promote prompt and just disposition of the case. Parties may also consent to arbitration for any civil case.
Excluded from arbitration are constitutional claims, any case where jurisdiction is based on 28 U.S.C. § 1343, and all other cases not enumerated above.
Referral method.
Referral is mandatory and automatic for all eligible cases. The parties are notified of the referral by the clerk within twenty days of issuance. Consensual use of arbitration is also permitted.
Opt-out or removal.
A party may request that the case not be designated to arbitration by certifying at filing that damages exceed $150,000. In addition, any civil action may be exempt or withdrawn from arbitration if the presiding judge determines that the case is not suitable for arbitration. Mediation may be substituted for arbitration if the judge determines that the case is better suited to mediation.
Scheduling
Referral.
Cases are referred to arbitration within twenty days after the case is at issue.
Discovery and motions.
Parties may file pretrial motions and conduct discovery within the time limits specified in the assigned judge's case management order.
Written submissions.
At least ten days before the arbitration hearing, each party is required to give every other party a list of witnesses and copies of all exhibits to be used at the hearing. Parties must also file and serve answers to standard interrogatories before a specified date.
Arbitration hearing.
The arbitration hearing is held within 110 days of the referral date. Continuance of an arbitration hearing more than 90 days after the designation of the arbitrators is allowed only by order of the court, but it is discouraged. Arbitration hearings are held at the courthouse and are arranged by clerk's office staff.
Length of hearing.
On average, arbitration hearings last two to four hours.
Program features
Party roles and sanctions.
In addition to counsel, individual parties or authorized representatives of corporate parties must attend the arbitration hearing unless excused in advance by the arbitrators for good cause. The arbitration hearing may proceed without a party, who, after notice, fails to attend, but an award of damages may not be based solely on the absence of a party. The local rules do not address sanctions for noncompliance.
Filing of award.
The award is filed with the clerk under seal within ten days of the hearing. No factual findings or conclusions of law are required. The clerk's office dockets the award (leaving out the details of the award), mails a copy to the arbitrators and counsel, seals it, and places it in the case file. If a written demand for trial de novo is filed, the award remains sealed and will be opened only if the court orders. If a timely request for trial de novo is not made, the arbitrator's award is entered as the judgment.
De novo request.
A request for trial de novo must be made within thirty days of the filing of the arbitration award. When requesting a trial de novo, the moving party must deposit a sum equal to the arbitrators' fees. The de novo fees are forfeited if the demanding party fails to obtain a judgment in the district court that is more favorable than the arbitration award, exclusive of interest and costs.
Confidentiality.
The contents of an arbitration award may not be made known to the judge assigned to the case (1) except as necessary for the court to determine whether to assess costs or attorney's fees under 28 U.S.C. § 655; (2) until the district court has entered final judgment in the action or the action has been otherwise terminated; or (3) except for purposes of preparing the report required by Section 903(b) of the Judicial Improvements and Access to Justice Act.
At the trial de novo the court will not admit any evidence about the arbitration process or the award. Testimony given at an arbitration hearing may be used for any purpose otherwise permitted by the Federal Rules of Evidence or the Federal Rules of Civil Procedure.
Neutrals
Qualifications and training.
An attorney may be certified to serve as an arbitrator if he or she has been a member of the Florida bar for at least five years, is admitted to practice in the district, and has been determined competent to serve as an arbitrator by the chief judge.
Selection for case.
Within twenty days of the notice of referral to arbitration, the parties may select three arbitrators from the court's roster of attorney-arbitrators. If the parties do make a selection, the clerk randomly selects a panel of three arbitrators from the roster. Parties may also agree to use fewer than three arbitrators.
Disqualification.
Any person selected as an arbitrator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must disqualify himself or herself in any action in which the neutral would be required to do so if he or she were a justice, judge, or magistrate judge governed by 28 U.S.C. § 455.
Immunity.
The court has not addressed this issue.
Fees.
The court sets and pays the fees of $100 per arbitrator per hearing.
Program administration
The clerk's office administers the program. The judge assigned the case addresses case specific issues, and the court as a whole deals with general program issues.
Mediation in Middle Florida
Overview
Description and authorization.
The Middle District of Florida established a mandatory mediation program by local rule in 1989. Under Local Rule Chapter 9, referrals are made on a case-by-case basis by the assigned judge, generally late in the litigation after discovery is complete. Almost all civil cases not subject to mandatory arbitration are eligible for compulsory mediation. Consensual referrals are also permitted. A single attorney-mediator, certified and trained in mediation and selected by the parties or the court, presides over the mediation. Parties are required to attend and participate in the mediation session until a settlement is reached or an impasse is declared by the mediator. At the conclusion, the mediator reports the outcome of the process to the presiding judge: that the case settled, adjourned for further mediation at the parties' request, or is at an impasse. Most mediations last from three to five hours. The parties jointly bear the cost of the mediator, whose fees are set by the court at $150 an hour.
Number of cases.
Between January and November 1994, approximately 300 cases were referred to mediation.
Case selection
Eligibility of cases.
Almost all civil cases are eligible for mediation except cases referred to mandatory arbitration; appeals from rulings of administrative agencies; habeas corpus and/or extraordinary writs; forfeitures of seized property; and bankruptcy appeals.
Referral method.
The assigned judge may refer a case to mediation without party consent. Parties may also stipulate to referral to mediation. An order of referral is entered after the judge or parties select mediation.
Opt-out or removal.
Any civil action or claim referred to mediation may be exempt or withdrawn from mediation by the presiding judge at any time, before or after reference, if it is determined that the case is not suitable for mediation.
Scheduling
Referral.
A referral to mediation may be made at any appropriate time in the litigation.
Written submissions.
Each party must submit to the mediator and opposing counsel a brief written summary of the facts and issues in the case. The mediation summary is treated as confidential and is not filed with the court.
Mediation session.
The mediation hearing generally occurs late in the litigation after the close of discovery and shortly before trial. The preferred window for mediation is no sooner than forty-five days and not later than ten days before the scheduled trial date. In the mediation referral order, the assigned judge assigns one of the attorneys responsibility for coordinating and scheduling the mediation sessions. The mediation session may be held at the courthouse.
Number and length of sessions.
On average, a single mediation session lasts three to five hours.
Program features
Discovery and motions.
All other case activities go forward during the mediation referral.
Party roles and sanctions.
In addition to counsel, all parties, corporate representatives, and any other claims professionals with full authority to settle are required to attend the mediation conference. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the court.
Outcome.
Within five days of the close of the first mediation session, the mediator files a mediation report with the court indicating whether the case settled, whether additional sessions were requested by the parties, or whether the mediator has declared an impasse. If the case settles, lead counsel must notify the court, and judgment is entered.
Confidentiality.
All proceedings of the mediation conference, including statements made by any party, attorney, or other participant, are privileged in all respects. The proceedings may not be reported, recorded, placed into evidence, made known to the trial court or jury, or construed for any purpose as an admission. A party is not bound by anything said or done at the conference, unless a settlement is reached.
Neutrals
Qualifications and training.
An individual may be certified to serve as a mediator if: (1) he or she is a former state court judge who presided in a court of general jurisdiction and was also a member of the bar in that state; or (2) he or she is a retired federal judge; or (3) he or she has been a member of a state bar or the bar of the District of Columbia for at least ten years and is currently admitted to the bar of the district court. In addition, an applicant for certification must have completed a minimum of forty hours in the Florida Circuit Court Mediation Training Course certified by the Florida Supreme Court and must be found competent by the chief judge to perform mediation duties.
The chief judge certifies qualified mediators and is authorized to withdraw the certification of any mediator at any time. Local lists of certified mediators are maintained by each division of the court and made available to counsel and the public on request.
Selection for case.
The parties may select a mediator from the court's roster of certified mediators. If the parties cannot agree on a mediator, the assigned judge will make the appointment from the court's roster.
Disqualification.
Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. § 455.
Immunity.
Local rules do not address this issue.
Fees.
The mediator is compensated at a rate set by the court, which is currently $150 an hour. The mediator's fees are borne equally by the parties.
Program administration
Case-specific issues are addressed by the judge assigned the case. The court as a whole deals with general program issues.
Excerpted from
ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996,
a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution