As a former judge and current mediator/arbitrator, I thought I knew all the available methods to resolve cases. However, there is one procedure that has remained somewhat elusive to me, as well as to some other legal professionals.
Section 44.104 of the Florida Statutes permits certain matters to be decided by private judges known as trial resolution judges.
This process, called voluntary trial resolution, applies to all civil disputes except for those that pertain to constitutional questions, child custody issues, visitation, child support or any dispute which involves the rights of a third party when the third party would be an indispensable party.
The process begins when parties agree in writing to submit the controversy to a trial resolution judge.
The trial resolution judge is then either chosen by the parties or, in the absence of an agreement, appointed by the court.
Any member of The Florida Bar in good standing for more than five years can serve as a trial resolution judge.
The trial resolution judge may administer oaths and issue subpoenas for the attendance of witnesses and for documents. Moreover, the trial resolution judge has full authority to determine any question presented and to render a final decision.
One of the objections that I have heard regarding the arbitration process concerns the lack of rigid evidentiary requirements. Arbitration is often believed to be a quasi-legal free-for-all. Unlike some forms of arbitration, voluntary trial resolution utilizes the Florida Rules of Evidence. Thus, it creates a structured process in the same fashion as a traditional trial.
Another question that comes up is whether voluntary trial resolution allows for a jury trial. Section 44.104 is silent as to whether a jury trial is permitted.
However, because there is no express prohibition, this constitutional right remains preserved.
This is further supported by the administrative orders in at least two Florida Circuit Courts. Namely, the 6th Judicial Circuit (Pasco and Pinellas Counties) and the 13th Judicial Circuit (Hillsborough County) have administrative orders in place that establish specific jury procedures for voluntary trial resolution.
Parties proceeding under Section 44.104 maintain appellate rights. Unless a constitutional issue is raised, the harmless error doctrine applies to any appeal initiated from a voluntary trial resolution proceeding.
Practically speaking, although there is a fee component to the voluntary trial resolution process, it also has benefits which, in some circumstances, may outweigh the additional costs.
This process alleviates the need to wait an extended time through a strained court docket.
More important, this process gives parties the ability to select an individual with particular knowledge and skill sets for specialized areas of law (i.e., construction law and complex business litigation), as opposed to a judge who may have minimal or no knowledge of the subject matter.
In summary, while a trial resolution judge may not be an option for every legal dispute, there are certainly situations where parties can benefit from voluntary trial resolution.
Bryan Rendzio is a former 7th Circuit judge. He is board certified in construction law by The Florida Bar and now serves as a full-time neutral at Miles Mediation & Arbitration.