When must a lawsuit go to arbitration or stay in federal or state court? Take a close look at the arbitration provision in your document. Sometimes, only SOME claims go to arbitration. Consider a recent case which discusses this very issue. (To read more about whether you have to go to arbitration, click HERE.)
Why Florida arbitration?
What is arbitration and why is there an arbitration provision in my document?
Think of arbitration as private judging. A forum for the resolution of a dispute. Instead of going to court, the parties to an arbitration agreement go to a private, non-public proceeding. Arbitration.
Instead of a judge in a robe, you have arbitrators. Either one single arbitrator. Or a panel (e.g. 3 ) arbitrators.
Instead of a judgment, you get an “award”.
Arbitration can be had by the agreement of the parties.
Often, there is an arbitration provision in documents like contracts. Or a power of attorney. If you sign the contract with such a provision, you are agreeing to at least some arbitration. Or, arbitration of at least some of the claims brought by you or another party to the contract.
In Florida, there is a statute in the Florida Probate Code which acknowledges that you can have an arbitration provision in a will or a trust. See Fla. Stat. 731.401. To read more about Florida probate and trust litigators who have handled this issue, click here.
Why only some? Because some arbitrations provisions may have a “carve out”. What’s a carve out? A carve out says that some claims or issues don’t go to arbitration. Consider an August, 2022 opinion on this very subject from Florida’s 3rd District Court of Appeal in Miami-Dade County.
You mean that not all the issues you are involved in may be resolved by arbitration? Correct. Maybe.
Arbitration provision does not require arb of all matters
How do you get to arbitration?
By agreement of the parties.
Most of the time, the requirement that disputes be settled by arbitration is mandatory if there is a clause in a document. If there is a will or trust or contract or prenuptial agreement which requires arbitration, you are most likely not going to state or federal court. Your dispute or disagreement will be handled by an arbitration panel. To consider whether the right to arbitration is waived, click HERE.
Florida actually has an Arbitration Code.
There are certain basic rules for arbitration. A list of these key topics is at the end of this Florida Legal Blog.
In the recent case of 1906 Collins LLC v. Romero, the Miami Appeals Court ruled that NOT all claims had to go to arb. Only some. Why? There was a carve out, or limiting language, or a provision, that required only some claims go to arbitration. BUT, serious trial attorneys who handle arbitration will caution you. Sometimes, ALL issues and claims are REQUIRED to go to arbitration.
Here’s a list of key Florida arbitration topics:
- If a lawsuit is filed in a court, and you want arbitration, you have to file a motion to stay and to compel arbitration.
- In the state or federal court, if you want arbitration, be careful.
- Don’t ask for affirmative relief, or you may end up waiving the right to arbitrate.
- If there is a disagreement on whether you should be in court or before an arbitration panel, there will be a hearing on this.
- Experienced trial attorneys who handle arbitrations and court cases know that these hearings can sometimes be very long and thorough. So be prepared.
- Once the arb panel issues its award, you may have to file that in a state or federal court to have it confirmed.
- Oh yes, except for very limited circumstances, arb awards are not appealable.