In recent years, Florida courts have been increasingly ordering cases to nonbinding arbitration pursuant to Section 44.103, Fla. Stat. and Rule 1.820, Fla. R. Civ. P. The intent of nonbinding arbitration is for the parties to present their positions to a decision-maker (i.e., the nonbinding arbitrator).
The arbitrator renders an award that ultimately gives the parties guidance as to how the court or a jury may find once the matter reaches trial.
Nonbinding arbitration is intended to be expeditious without a trial’s evidentiary and procedural formalities.
The issues are typically presented to the arbitrator through statements and arguments of counsel.
Witness testimony is permissible but is usually presented informally through deposition transcripts or affidavits.
Even though nonbinding arbitrations have relaxed rules and procedures, they can carry significant legal consequences.
If a plaintiff rejects the arbitration award, files for trial de novo and the judgment at trial turns out to be at least 25% less than the arbitration award, the plaintiff could become liable for the defendant’s attorney’s fees and costs.
Conversely, if a defendant rejects the arbitration award, files for trial de novo and the judgment at trial is at least 25% more than the arbitration award, then the defense could become liable for the plaintiff’s attorney’s fees and costs.
Because of these legal consequences, counsel may become concerned as to whether or not live witness testimony should be offered.
There can be the belief that one form of presentation may carry more weight for the arbitrator.
From the perspective of an arbitrator, it is the information presented that is dispositive irrespective of how a party chooses to present.
If a party chooses to utilize live witness testimony, the question then turns to the ground rules for the witness presentation. Is the witness sworn in? Is opposing counsel permitted, or even required, to object to lines of questioning to properly advocate in this process? Is cross-examination permitted?
The procedure for conducting witness testimony varies depending upon the parties and the arbitrator.
Unless otherwise agreed by the parties, this arbitrator’s process is to swear in any live witnesses.
Counsel who calls the witness is then permitted to question the witness on direct examination. This arbitrator does not permit objections or cross-examination.
At first glance, this may appear to be detrimental to the opposing parties.
However, as we have already established, nonbinding arbitration is informal with the intent of being expeditious. Inviting legal objections and cross-examination opens the door for the matter to transform into a trial.
The other aspect that must be considered is the fact that counsel has the ability to provide summations, which would not be subject to objections.
Thus, whether a party chooses to present through live testimony or alternatively through largely hearsay summations, every party is on equal legal footing.
If parties are anticipating presenting live witness testimony, it is recommended that they set up a pre-hearing call with the arbitrator and all parties. This will permit counsel to understand and agree to the ground rules.
During this pre-hearing call, counsel have the opportunity to address any concerns with the arbitrator as to whether additional weight would be given to live witness testimony versus attorney summations.
This also allows parties to set up each side’s allotted time for presentations, which can alleviate concerns that witness testimony may unfairly take away from other parties’ presentation times.
Bryan Rendzio is a former circuit court judge for the 7th Judicial Circuit. He is board certified in construction law by The Florida Bar, and is a full-time neutral at Miles Mediation & Arbitration.