ROBERT M. EVANS is qualified to serve as an arbitrator based on the fact that he is a former Florida trial judge who served for over 20 years. During his tenure on the bench, he conducted proceedings similar to non-binding arbitration in cases that were not assigned to his division to aid the parties and their attorneys in assessing the strengths and weaknesses of their cases in an effort to promote settlement.
Although non-binding arbitration and mediation have some similarities, they have significant differences. They are similar in that both are alternatives to litigation at a hearing or trial and both employ a neutral third-party. The parties are the decision-makers at mediation, but they have no such role at arbitration. The arbitrator generally acts similar to a trial judge, making decisions about evidence and giving a written opinion. In non-binding arbitration, the written opinion is not binding. But because it actually results in a decision that could become binding, attorneys and their clients must be knowledgeable about the arbitration procedure in order to obtain the best results.
Florida Statutes Section 44.103 is the authority for non-binding arbitration and the procedure is found in Rule1.820 of the Florida Rules of Civil Procedure.
One of the reasons for using court-ordered non-binding arbitration is that it is both faster and less expensive than litigation in civil courts. Rule 1.820 provides for this streamlined approach: “The hearing shall be conducted informally. Presentation of testimony shall be kept to a minimum, and matters shall be presented to the arbitrator(s) primarily through the statements and argument of counsel.”
As provided by the Rule, the informality is the hallmark of the non-binding arbitration hearing. However, even though it is informal, each party must be given an equal and fair opportunity to be heard. Although the order of the proceeding is at the arbitrator’s discretion, the hearing generally begins by each party giving an opening statement as to the scope and nature of that party’s case. Each party then presents that party’s evidence or of a summary of that party’s evidence. If the evidence includes testimony of a witness, the arbitrator has the authority to administer oaths and the other party has the right to cross-examine that witness. Finally, each party will present a closing argument, including the relevant case law.
Within ten days of the completion of the arbitration process, the arbitrator must issue his written decision, including the issues in controversy and the arbitrator’s conclusions and findings of fact and law, as well as the award itself.
Perhaps the courts are ordering non-binding arbitration because mediation has failed to result in a resolution and the court might believe that one of the parties needs a reality check in the form of a third party letting the litigants know the merits or lack thereof of their dispute. The court cannot order binding arbitration because to force litigants into binding arbitration would violate their constitutional guarantee of access to the courts. The use of non-binding arbitration still allows the parties to litigate the matter in court by way of a trial de novo if either party does not agree with the arbitration award and the request for a trial de novo is filed in a timely manner. But there is a catch: Florida Statutes Section 44.103(6) provides the mechanism for the court to assess costs, including “arbitration costs, court costs, reasonable attorney’s fees, and other reasonable costs such as investigation expenses and expenses for expert or other testimony which were incurred after the arbitration hearing and continuing through the trial of the case in accordance with the guidelines for taxation of costs as adopted by the Supreme Court.” The award can be made against the party that filed for a trial de novo – against the Plaintiff, having filed for a trial de novo, if the Plaintiff obtains a judgment at trial which is at least 25% less than the arbitration award and against the Defendant, having filed for a trial de novo, if the judgment entered against the Defendant is at least 25% more than the arbitration award.
Perhaps the most important factor in successfully arbitrating, other than the expertise of your attorney, is the choice of the arbitrator. Criteria for choosing an arbitrator include above all else someone who is proven to be fair minded and impartial. Other criteria include finding someone with expertise in the subject matter of the dispute. Mr. Evans’ biography reflects that he indeed possesses these criteria.