ALTERNATIVE DISPUTE RESOLUTION
THE NEXT STEP
(Published)
The jury is in, so to speak, and in Collier County Court-Ordered Nonbinding Arbitration (NBA) is here to stay.
NBA is an alternative dispute resolution procedure that lies somewhere between mediation, where the mediator does not make a decision, and a trial where the court does make a decision. Visually, the continuum looks like this:
(1) VERBAL DEMANDS
(2) WRITTEN DEMANDS
(3) FILING A LAWSUIT
(4) MEDIATION
(5) NONBINDING ARBITRATION
(6) TRIAL
(7) APPEAL
The authority for NBA is Sec. 44.103, F.S., which provides that a court may refer any contested civil action filed in Circuit or County Court to NBA. Rule 1.820, Florida Rules of Civil Procedure, sets out the procedure to be followed in conducting the arbitration hearing. The procedure is an informal one, wherein presentation of testimony is kept to a minimum and matters are presented to the arbitrator primarily through the statements and argument of counsel. Within ten days after the arbitration hearing the arbitrator is required to notify the parties in writing of his decision. If the arbitrator's decision is not objected to within twenty days by either party filing a motion for trial, the arbitrator's decision is submitted to the court for entry of an Order confirming the decision.
By now, most trial practitioners in Collier County have been ordered to participate in one or more Court-Ordered Nonbinding Arbitration procedures. From my discussions with judges and participants, as well as from my own personal observations as a participant and as an appointed Arbitrator, it appears that NBA is effective and welcomed by both the Bar and the Bench. While mediation appears to resolve approximately 75% of all cases mediated, NBA appears to dispose of an additional 25% to 50% of all cases arbitrated. Because of the increasing demands on our judicial system, any procedure that is as effective as NBA is a worthwhile procedure which undoubtedly will become a permanent part of the dispute resolution continuum.
Because the use of NBA is new to Collier County, and possibly the State, there is still some experimentation with how and when it should be used. One viewpoint is that NBA is not a substitute for mediation, but is an additional tool to be used only after mediation has been attempted and has failed. The other viewpoint is that because of the additional expense of NBA, parties should not have to participate in both mediation and NBA. Therefore, the proponents of this view argue that cases ordered to NBA should be relieved of the obligation to mediate as well.
It appears to this practitioner that the better viewpoint is that NBA is not a substitute for mediation, but is an additional tool. Mediation allows the parties themselves to negotiate a resolution of their dispute, while NBA on the other hand imposes a decision on them. Because of the non-binding nature of NBA (a party may request a trial), it presents an additional opportunity to resolve a case, and in the event it is not successful, it can be viewed as trial preparation.
The question one might ask is whether NBA should be ordered in all cases that are not resolved in mediation, or whether there should be some selectivity in deciding when to use NBA. One approach may be to require the trial lawyer to make this evaluation on a case-by-case basis. However, the trial lawyer's evaluation is a subjective one with which reasonable people may differ and over which a trial practitioner may procrastinate. Therefore, a better approach may require that all cases not settled at mediation be referred by the court to NBA unless good cause is shown to the contrary. Because judges are not always in a position to know the appropriateness of using either or both of these procedures in a particular dispute or the timing for the use of either procedure, trial lawyers need to be more proactive in shepherding their cases through the system. Mediation, as well as NBA should be considered standard procedure for the resolution of a lawsuit.
The twenty-first century will be known as the century of innovation, to which lawyers and the practice of law will be no exception. For the trial practitioner, NBA may be the first of many changes to come. Rather than viewing NBA as a change that is a threat to the trial lawyer's practice, it should be embraced as an opportunity to resolve disputes without incurring the time, expense and inconvenience of a trial.
Leonard P. Reina is President of Mediation & Arbitration Services, Inc. and is a Florida attorney certified as both a mediator and an arbitrator.
