Why Arbitration?

Why arbitration you ask?  Most people have heard of it, but not many really know what the process is, or what is involved. Many people think it is something that is used by large groups, sports team, unions or big business. A few people have heard of it being used for smaller disputes like a condo association or home owner's associations. Most people don't realize arbitration can be an alternative in most civil cases.

There are many different types of arbitration. It can be contractually required, optional, court ordered, voluntary, or it can be used as a voluntary trial resolution. It can be binding or non-binding. To really confuse things it can be non-binding that becomes binding. It can be appealed in some cases and not in others. There can be one arbitrator or a panel. The arbitrator(s) can be chosen by you, or assigned by the court. Before you throw your hands in the air in utter confusion, read on. This article will discuss some simple distinctions about arbitration and why it is a valuable, and cost-effective alternative to traditional litigation.

Let's start by saying that every state has different rules regarding arbitration. You will have to check the statutes and rules in your state to determine exactly what your options are, or you can check with your attorney to find out if it is a good alternative for your situation. Another thing to consider is that some jurisdictions pay the arbitrator and some do not. For example, in New York, attorney client fee arbitration is free for the client, and every attorney must make the information available to the client. For the purposes of this article, we will be dealing only with Florida laws, rules and procedures.

Florida defines arbitration as: "A process whereby a neutral third person or panel, called an arbitrator or arbitration panel, considers the facts and arguments presented by the parties and renders a decision which may be binding or non-binding..." F.S. 44.1011(1). The practice of arbitration has been around almost as long as mankind. Arbitration was traditionally used by asking a neutral neighbor or fellow merchant to hear a dispute and all parties agreeing to abide by the decision.

Florida has three basic types of arbitration:

1.  Binding and non-binding court ordered arbitration
2.  Binding and non-binding non-court ordered arbitration (contract clauses for example)
3. Voluntary trial resolution in which the arbitrator conducts a hearing, renders a decision and that decision is appealable

This article will focus on the court processes. Non-court ordered arbitration has its own set of rules, procedures and requirements that will be covered in other articles.

The Organian Counsel of Elders-
Star Trek. Stardate 3198.4

So, you ask, what is an arbitrator? An arbitrator can be an individual or a panel. The panel is usually comprised of three individuals with one of them being appointed chief arbitrator. A majority of the three can render decisions, but only the chief arbitrator can issue subpoenas, administer oaths and affirmations and apply to the court to compel or enforce production or appearances. Another form of arbitrator is the trial resolution judge who has the authority of a chief arbitrator and who can determine any question and render a final decision in a voluntary trial resolution.

As an example, let's say the lawsuit has been filed, the parties have tried and failed at mediation, and everyone appears before the judge. The judge can continue the process in the traditional litigation track, or the judge can resort to arbitration. There are three possible arbitration methods the judge can seek:

• The court can order the parties to mandatory non-binding arbitration for most civil cases.* What this means is that the parties must attend arbitration. The judge will receive the arbitration decision as an "advisory" opinion. However, if the parties do not object to the arbitrator's opinion, the court will adopt it and it will become the court's final decision. Make sure you speak with your attorney, or that you are fully aware of the amount of time you have to object, what the potential consequences of the decision are, and what steps you need to take to file the necessary paperwork.

PROS: The parties have the right to agree to an arbitrator, or a panel, on their own. This gives the parties some flexibility over who hears the case. A case must be heard and decided within a very short period of time so the parties can resolve the issues and save protracted litigation costs. The rules of evidence are relaxed and the parties rely mostly on the arguments of their counsel, rather than paying for extensive discovery and disclosure, hiring experts and scheduling witnesses for trial. Each party gets a clear idea of how the facts and evidence they choose to present will likely be decided and they can decide whether the case merits going further. If they decide to request a regular trial after arbitration, the judge will not know the decision of the arbitrator, or what evidence was presented. The case will be heard "de novo" or "from the beginning" as if the arbitration had not taken place.

CONS: If the parties do not agree on an arbitrator or panel, the court will assign the case and the parties will have no choice in who hears the case. The case is heard in a short period of time so preparation will be accelerated. If a party disagrees with the arbitrator's decision, and decides to have a trial "de novo" with the judge, the other party can request fees and costs of the trial, the arbitration, and other costs even if the party requesting the new trial wins. These fees and costs are set out in F.S. 44.1103(6).

• The court can ask the parties to consent in writing to binding arbitration. This means, essentially, the arbitrator's opinion will be adopted by the court as an order and court's order will be final. Notice the words "consent in writing."

 PROS:  The parties can choose their arbitrator or panel by agreement giving them some control over who hears the case. The rules and procedures are formalized. Filing an application for binding arbitration tolls the statute of limitations. The arbitrator or chief arbitrator of the panel, has subpoena power for production of documents and witnesses and other evidence. The time within which to complete the arbitration is fairly short so the case can be resolved much faster than traditional litigation permits. An appeal of the arbitration decision can be made to the Circuit Court.


CONS: If the parties do not agree on the arbitrator or panel, the judge will assign the arbitration at random. The time within which to conduct the arbitration is much shorter and this means less preparation time. The decision is final and binding and subject to immediate enforcement. Appeals are limited to specific issues of the arbitrator's failure to comply with rules and statutes and evidence codes, bias, partiality or misconduct, or a decision that violates state or federal constitutional principles.

• The parties can agree to voluntary trial resolution. This is essentially a complete trial in front of an arbitrator rather than a judge. This model is actually the traditional arbitration relied upon throughout history.

PROS: The trial resolution judge must have specific qualifications and must have been a member of the Florida Bar for at least 5 years in good standing. If the parties have a written agreement detailing how to choose a trial resolution judge, they will have some control over who hears the case. Filing the voluntary trial resolution application tolls the statute of limitations. The trial resolution judge has subpoena power for witnesses, documents and other evidence and may administer oaths or affirmations. The final decision of the trial resolution judge is enforceable by filing a petition for final judgment. The decision is appealable to the appropriate appellate court.

CONS: If the parties do not have a written agreement as to how to choose the trial resolution judge, the judge will appoint someone who meets the qualifications at random. There is no "de novo" review of the facts at any appellate level. The harmless error rule applies unless a constitutional issue is raised. This means that even if an error was made, if it would not have changed the outcome or did not substantially prejudice a party, the ruling will stand.

"Cap on fees?"

So, you ask, who pays for all this? The parties pay for it. However, most court ordered arbitration has a cap on fees. This does not include attorneys, experts, documents, transcription, reporting or other fees. Where a party cannot pay, state funds may, under some circumstances, be used to pay the arbitrator. Obviously a single arbitrator is much less expensive than a panel, but sometimes a panel will give you a better outcome. A trial resolution judge has more experience than many arbitrators, and the fees are usually the same. The flip side is that each circuit has its own rules, procedures and allowances.

Arbitration has been used successfully for hundreds, if not thousands of years. It is a valuable alternative and saves time and expenses for litigants in tough economic times and increasingly shrinking judicial resources. It is important to be informed, know your options, and find out about local arbitrators.

I hope this answers any questions you may have about court-ordered arbitration. Collaborative Solutions, P.A. is available for arbitration throughout Florida, and can be found on several judicial lists in central Florida.

I look forward to working with you.

Lyndy

* Florida Statutes prohibit arbitration in child custody, visitation or child support or where the rights of a third party not part of the arbitration are, or may be affected. For the full explanation you can read F.S. 44.104(14) HERE.

What is Parenting Coordination?

Florida Legislature in session

What is Parenting Coordination you ask? While it is tempting to give a quick definition based upon the Florida legislative vision of what it is supposed to be, the vitriol which some writers have heaped upon it requires a more in-depth answer.

When I returned to law school in my early forties, I was  not going to law school because I didn't have anything to do at home. At the time, law school was one of the most highly competitive schools a young person could attempt and, it was a nearly impossible task for a change of lifer with a family, and a full set of grown up responsibilities. I went to law school to study Constitutional and Environmental law. I ended up practicing family, administrative and criminal law. 

Brevard County Courthouse at Viera

Family court is an interesting place to practice law. It is the place where the most important people in our lives, the very fabric of who we are, are affected by every decision, every action, and every failure to act. Kindness to your ex can be used against you and an agreement to modify the schedule for a special occasion may become a demand to modify it whenever and wherever it is demanded. It is a place where  grandparents can become the enemy, and significant others give world wars an inferiority complex.

Parenting coordination in Florida was proposed several years before its eventual enactment. It was passed by by the legislature, but vetoed by then Governor Jeb Bush. He believed the original concept granted too many powers to the parenting coordinator and not enough court supervision. The idea was modified several times, and there were many reports and committees working together to try to find a good balance for the parents, the children, the courts and the overall family structure while still protecting vital individual rights. It was signed into law by Governor Charlie Christ in 2009 and adopted by the Florida Supreme Court in 2010.

Florida Statutes: 61.125 states: "The purpose of parenting coordination is to provide a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and, with the prior approval of the parents and the court, making limited decisions within the scope of the court's order of referral." The statute clarifies that where there is a judgment or order in which a parenting plan has been established, that the parents can request, or the court can appoint, a parenting coordinator to assist the parents in resolving disputes concerning that parenting plan. 

Okay...in English. If the court orders or adopts a parenting plan, and the parents can't seem to work together to carry out that plan, the court can appoint a parenting coordinator to help them. The court gives the parenting coordinator the authority to use many different resources to help the parents. The key words here are "court orders or adopts a parenting plan."

Image courtesy of: http://www.prelationshipinfo.com/

Parenting is a very hard job. Probably one of the hardest things we do in our lives. When there are two people working together to raise children, we have to face the challenges with a united front, or at least try. What happens when we can't do that? What happens when we decide to split up and try to raise the children together...apart? What happens to the grandparents? Who takes the kids to school? Who goes home from work when the kids get sick? What happens when we meet someone else and they become involved with the children?

All of these questions can lead to stress and tension even in the most amicable breakup. No one starts off believing that they will fight for 18 years over each child. But, sadly, it happens. It happens to good people who mean well, and who are trying to do the best they can, taking care of the children they love. It happens to people who have been ordered by a court to do things with their children that they don't want to do.

For years, the court system has tried to work with parents to fashion solutions that are in the best interest of the children. The court does the best it can with the information it is given. Unfortunately, that information is limited by time, the quality and/or presence of attorneys, and the individual sitting on the bench. Over the past 30 years mediation has gone far to assist parents and the courts in reaching more personalized solutions for individual families. For the majority of parents that system works.

Then there are the parents who cannot work together. Those who return to court again and again and again with disputes about the children, the new significant other, the grandparents, the choice of day care, when to take vacations, and hundreds of other issues that come up every day. That is where parenting coordination comes in.

Modern day courts are not equipped to quickly resolve issues that come up, and so the battles go on, sometimes for months, and the children and parents get caught in a pattern that just keeps repeating. Keep in mind that while all the fighting is going on, there is a court order. It is not a court "suggestion" and that can create new problems for parents and the children. During all of this, who is focusing on the children? Parenting coordination is a child-centered approach, and that means working with the parents to break the patterns, find solutions, and try to enhance communication between two people in a child-centered focus.

In Florida, parenting coordinators must be trained in psychology, psychiatry or law.* They must be familiar with family dynamics in a family court setting including domestic violence, child abuse issues, and they must be trained in family mediation. They must be able to work with families from all backgrounds.They must have thick skins and they must be willing to creatively use all the tools given to them by the courts and the legislature to help parents find methods, ideas and programs that put the children's needs first. They must be able to use their experience and knowledge of the system, the family court process and real issues dealing with intensely personal situations confronting parents and children. They must be able to think outside the box of traditional remedies that are never going to work for a particular set of people.

Parenting coordination is not for everyone. First, a court must make a determination that the parents can afford it. Contrary to some articles written on the subject, the rates are often set by the court and it is the court, not the parents, who decide how to divide the costs. Parenting coordination can last for weeks, months or years depending upon the parent's ability  to comply with the court's orders. The court can periodically review the process and the parties always have access to their attorney. Traditional court remedies are available to parents, and to the parenting coordinator, and a judge retains authority over the case at all times. A court order determines what the parenting coordinator can do and not do, and the legislature has set strict standards that must be followed. Confidentiality is strictly enforced except for specific situations set out in the statute.

Parenting coordination is usually ordered by the court after several disputes, and many appearances, that result in further disputes  Parents can also proactively request a parenting coordinator to help them if the conflict in the relationship becomes too difficult, or if they find themselves returning to court many times for issues they just cannot seem to resolve on their own. 

Parenting coordination is a process. It is not a mediation, where you go once or twice, sign an agreement and move forward - but mediation is a tool that can be used. It is not subject to arbitration because a real judge has already heard the issues several times and issued an order - although arbitration techniques are tools that can be used. It is not facilitation - although many supporting people such as doctors, extended families and counselors, can be brought in to brainstorm and develop personalized solutions. It is not psychology  - although an understanding of psychology and family dynamics is a critical piece of the puzzle. It is not law - however, the parenting coordinator must have a working knowledge of law and procedure to help the participants comply with the court's order, or direct them to seek counsel when necessary. Parenting coordinators may not act as judges, or lawyers, or psychologists, or therapists but they must be able to see the whole picture from these perspectives. While doing all this, they must remain neutral and be willing to take steps necessary for the children, the courts and the parents to move the process along successfully.

It is not a program for the faint of heart or for the rookie. The legislature and the courts have set out stringent, detailed requirements and codes of professional conduct and they are strictly enforced for the protection of parents, and parenting coordinators.

Parenting coordination can be intensely rewarding for all concerned. There is no greater result than finding a path that leads to everyone being able to work together toward successfully raising children, and providing those children  loving relationships with both parents wherever possible.

One caveat for those reading this article. There has been a great deal of criticism leveled regarding parenting coordination efforts and domestic violence. Domestic violence comes in many forms. It is not always obvious, or physical, and it is not something to take lightly. Parenting coordinators receive training in domestic violence, and for the most part, where domestic violence is a significant factor in the relationship, parenting coordination is not recommended. For a domestic violence case to be recommended to a parenting coordinator the courts are required to  make specific findings, and obtain informed consent from all parties. There will be other articles on this site dealing with domestic violence, but it should be noted that courts cannot, under most circumstances, refer a case if domestic violence is ongoing.

We offer parenting coordination services at Collaborative Solutions, P.A. but we limit the number of cases we take so that we can remain effective for our clients. The first meeting charges a flat rate for the intake and review of the files. Additional meetings are determined based upon your unique needs. I have helped many parents facing difficult situations and the children are almost always better once the parents can find new ways to deal with the stresses of co-parenting. It is a process, and one that develops according to your unique situation.

If you have been ordered to obtain parenting coordination services, you can request an appointment on the calendar on the top right section of this page. Someone from our office will contact you to discuss the time and let you know what to bring with you. Please review our policies and procedures so you can be prepared for the meeting. There are several forms on this website that are available for free download and which must be completed before your first appointment.

I look forward to meeting with you.

Lyndy

* The statute sets forth the specific requirements and other professionals are accepted as parenting coordinators. For further information please click HERE to read the full statute.

What is ADR?

Legal Dictionary

ADR - Function: abbreviation; alternative dispute resolution

Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc. 

It used to be that things were fairly simple. If you had a legal dispute, you went to a local attorney to find out your rights. You and your attorney reviewed the law and the facts and you took your best shot in court. The idea was that the proper use of the evidence, a good attorney and a court of law would sort it out and justice would be done.

Then the court dockets became clogged. Good attorneys became too costly for the average person. Your day in court became a half day squeezed in between nine other cases on the docket. Your attorney tells you to try mediation or arbitration to save on costs; or the court orders you to mediation before you can appear before the judge. Worse, you go before a judge for the fourth time because your ex didn't bring the kids back on time and the judge orders you to see a parenting coordinator. A parenting what?

This article discusses some of the popular alternative dispute solutions being used by attorneys, the courts, businesses and private individuals. There is no "right" model for everyone. Some solutions are permanent, some are flexible, some you need an attorney and many you can do yourself.

ARBITRATION

Arbitration is not a new concept and it is not just for sports teams. It has been used by state agencies for many years with varying degrees of success. Corporations began turning to it more than 100 years ago, and merchants have been using it all over the world for thousands of years.It is gaining popularity today because it reduces costs, is faster and less formal than court proceedings, it reduces the need for litigation attorneys, and you get a say in who hears your case. Some arbitration consist of a panel of three arbitrators and others have only one. Often, you can choose from a list or a recommendation.

Probably the most common place you find arbitration in the private sector in Florida is condo associations and HOAs, labor, or contract disputes. Arbitration can be binding or non-binding and many contracts have arbitration clauses that must be satisfied before traditional litigation can occur.

Arbitration is the most formal of the modern ADR methods for resolving disputes. For example, if you decide to have one arbitrator, that individual will hold a hearing just as if you went to a regular court. However, the rules in arbitration are very different than those you may have seen in a courtroom, while still providing you with a formal hearing process. Attorneys are welcome, but not required. However, because arbitration can be binding, and your appeal options may be limited, attorneys are strongly recommended.

There are several benefits to arbitrating your dispute. First, as previously mentioned, you have a say in who hears your case rather than being randomly assigned to a judge. Second, arbitration shortens the time frame, but it allows you to schedule your case rather than having to work around the court's calendar. Third, the procedures, formalities, rules of evidence and the conduct of the hearing are all designed to be more relaxed than a court room. Next, when you schedule your witnesses you don't have to repeatedly inconvenience them if court is running behind. If your witness takes a day off, a good arbitrator will try to schedule the time to make sure they get into the hearing. Another benefit is getting a decision quickly. Florida law requires that any court-referred arbitration render a decision within 10 days after the hearing unless there are special circumstances.

PARENTING COORDINATION

Next in formality is parenting coordination. This is a specialized process that is fairly new to Florida courts and, I hope a great idea for other jurisdictions. Everyone has heard of the family court cases that keep going back to court over and over again. Parenting coordinators are specially trained individuals that are assigned to tough cases to help parents and the courts create working solutions to ongoing parenting issues. Right now, almost all parenting coordination in Florida is done by court order and the parties have to be able to pay for the services. Attorneys are not permitted in the actual session, but the parties continue to have access to their attorney.

There are several benefits to parenting coordination that are not available to most family court cases. First, the Parenting Coordinator ("PC") gets to know you and your unique family situation and issues over a longer period of time. There is no magic formula to make people get along better after a break up or divorce, but the PC can use many forms of dispute resolution to assist struggling families to comply with court orders and try to keep the process focused on the best interest of the children, as determined by the court.

It is not an easy process, but it has proven very effective since the start of the program just a few years ago. It uses traditional methods, court support, mediation, collaborative efforts, facilitation, and other resources to try to keep the family on track.

MEDIATION

Mediation is being used in the vast majority of cases today because it is so effective and you get to help create the agreement rather than being ordered by a judge to comply with a decision. Mediators work with you to help you find solutions to your issues on your terms and according to your schedule. The concept is simple: no judge will ever know you or your situation better than you know it. Having a trained mediator helps you negotiate what you believe is the right solution for you, for your family, for your situation, for your outcomes. Mediation can also save thousands of dollars in costly litigation and months or years of time completing your case.

Mediation is not the same as compromise. It is a unique set of solutions designed by you, agreed to by you, in cooperation with your opponent without having to drag each other through lengthy litigation, hard feelings and "traditional" solutions that just don't work for your life. It can be court ordered, or it can be done privately either before or after filing a lawsuit, and can be done with or without an attorney. For example, many people today are using "compassionate" divorce mediation techniques that work with couples contemplating divorce without the hard feelings and costs of traditional divorce. A growing trend is couples seeking mediators before seeking attorneys, although the "jury is still out" about whether this will work in the long run. "Collaborative divorces" are also increasing in frequency, where the attorneys act as mediator and attorney, but only time will tell if this model will hold up to ethical and conflict issues.

FACILITATION

Finally, there is facilitation. This is often used in corporate settings or where several people need to work together to brainstorm ideas, solutions or projects. A good model for facilitation is a moderated brainstorming session. These programs are exciting, exhilarating, creative and have lasting effects on all participants. They open the door to tremendous growth, and facilitation is an outstanding morale booster for companies seeking to improve communications and productivity across departments or platforms. In a family setting it can be used to incorporate extended families and caregivers, and to promote cooperation and joint problem solving,

I hope this helps you better understand some of the alternative dispute solutions available to you. If you would like to schedule a mediation, arbitration, or if you have been ordered to parenting coordination, you can use the calendar on the upper right portion of any page to book your appointment. Be sure to read our terms and conditions before scheduling.

If you need more information on any particular method mentioned, you can read my other articles on the specific topic, or you can read any of our other blog and forum links, or you can drop me a line and ask a question, or post a comment below and I or one of our readers will get back to you within 24 hours. 

I look forward to working with you.
Lyndy