If the Stud’s a Dud and Other Horse Tales: Mediation of Equine Law Disputes May Be Your Best Bet
If you are involved in the equine industry in Florida, then you have much for which to be grateful. Florida is arguably the most horse-friendly state in the United States. Florida’s excellent climate and equine facilities attract great numbers of equine enthusiasts and business owners. According to the Florida Department of Agriculture and Consumer Services, Florida is home to nearly every breed of horse and a wide range of equine activities. These include horse breeding, raising and training, racing, horse showing, polo, rodeos, and other equine events. Florida has approximately 500,000 horses, according to some estimates, and ranks third in the country behind Texas and California. The economic impact of the equine industry in Florida is estimated to result in $6.5 billion gross domestic product, including spending by industry participants. However, horses are expensive animals, and things can go wrong in any equine activity. If things do go wrong and you end up in a legal dispute, then mediation can be a very effective way to resolve the dispute.
This article describes types of legal disputes in the equine industry. We answer the “why mediation?” question, by identifying the kinds of disputes for which mediation may be more suitable, as well as those kinds of disputes for which mediation may be less suitable. We provide some examples of when and why mediation was successful and unsuccessful in equine law disputes. We give some practical nuts-and-bolts suggestions on mediation of equine law disputes, including sample mediation clauses, and we will also identify some glossaries of equine terms.
Types of Equine Law Disputes
As the title of this article implies, horse breeding is an equine activity that can give rise to legal disputes. What can go wrong are broken promises, including the quality of shipped equine semen or frozen equine semen, the failure of live cover breeding by the stallion, or live foal guarantees or sound breeding condition promises that do not pan out. Disputes can arise from undisclosed information, such as the failure to disclose the results of the testing of the horses for genetic disorders or diseases that affect the breeding process. Much of horse breeding is conducted following written contracts. The parties to a breeding contract may make certain representations and warranties, the breach of which have legal consequences, much like most other kinds of contracts. If the breach is serious, then the parties may end up in litigation. Nevertheless, if the parties are likely to want to do business in the future, they will quickly realize that a court battle is not in either party’s best interest. Mediation is a better option, if the parties want to preserve their business relationship.
Horse sales are subject to legal disputes as well. Horses are considered “goods” under Florida law, so horse sales are subject to art. 2 of Florida’s Uniform Commercial Code. However, horses are animals, too, and some may have conditions or dispositions unfavorable to the intended use or as represented in the contract of sale. Even in contracts under which horses are sold “as is” or in the absence of a written contract, the facts may give rise to a legal dispute, such as fraud. If so, then buyers may want to rescind the purchase transaction. Sellers are usually unwilling to return the entire purchase price. If the issues are material, then legal disputes may arise.
All horses require veterinary care from time to time. Although veterinarians are generally highly educated, skilled, and trained, they are people, and people make mistakes. Such mistakes may lead to legal disputes. For example, buyers typically rely on veterinarians to examine horses and provide a report prior to sale. Such reports may include x-rays, flexion and lameness testing results, and blood work. If a veterinarian misses something, and the sale is consummated anyway, the buyer may have a claim against the veterinarian.
Equine activity is recognized as inherently dangerous in most states. Consequently, 48 states have enacted equine activity laws. These laws generally provide for owners and operators of equine activities to gain the protections of such laws against liability under certain defined circumstances, such as posting notices and getting signed releases from persons involved in equine activities. Still, despite the prevalence of such equine activity laws, horse and barn owners and operators may still be sued for damages caused to the person or property of business invitees and others. The fact patterns may differ, but often include the failure to post the proper notice, failure to obtain a proper signed release, or circumstances that fall under one or more express exceptions under the relevant equine activity law.
There are many other kinds of legal disputes that may arise in the equine industry. For example, in the horse racing industry, owners and jockeys may be disciplined for failure to follow the applicable racing rules. Racehorse and show-horse owners and trainers may be disciplined for using illegal drugs on their horses. Feed suppliers may be sued for selling tainted feed. Our purpose is to provide a representative, but not an exhaustive, list of the kinds of legal disputes that may arise in the equine industry.
Mediation offers legal disputants a confidential, cost-effective method of dispute resolution that empowers the parties to negotiate a final and binding end to their dispute. Mediation can be useful in equine disputes for the following reasons:
1) Mediation costs less money and time than litigation.
2) Mediation offers the parties a greater possibility of preserving their business relationship.
3) Mediation is private and confidential. Litigation is public.
4) Solutions that the parties negotiate themselves may be more flexible or imaginative than the legal remedies available in court. For example, the parties may negotiate for the sale of a replacement horse, and the sale of the original horse to a third party.
5) Early resolution through mediation can result in a horse being returned to the seller and resold, and the buyer getting back the purchase price.
6) In cross-border disputes, there may be personal jurisdictional problems.
7) Settlement rates vary, but the majority of mediations settle.
There are certain types of equine legal disputes for which mediation may work better than others. A nonexhaustive list follows:
1) Disputes over contracts of sale.
2) Disputes between owners and veterinarians or farriers.
3) Disputes arising from the transportation of horses.
4) Disputes over consignment sales.
5) Disputes over horse training agreements.
6) Breeding contract disputes.
7) Disputes over horse barn services.
8) Disputes involving personal injury or property damage related to equine activity.
9) Disputes arising from construction work of equine facilities.
10) Disputes between barn owners and feed suppliers.
There are certain types of equine legal disputes for which mediation may not work as well as others, such as:
1) Disputes in which the factual determination is outcome determinative. For example, a dispute over whether a horse received the proper medication or not would depend on a factual finding that might be based on a blood or urine test.
2) Landlord/tenant eviction disputes. You may want the stricter time limits in the applicable statutes.
3) Stablemen’s lien disputes.
4) Disputes in which the insurance carrier may not want mediation. (The best practice is to ask the carrier first.)
Examples of When and Why Mediation Works
According to Debra Vey Voda-Hamilton, author of numerous articles, podcasts, and videos on the mediation of animal law disputes, including “Nipped in the Bud, Not in the Butt, How to Use Mediation to Resolve Conflicts over Animals,” mediation works better when the parties consider it as soon as possible. She favors voluntary mediation clauses in horse transaction documents that place mediation first in the order of dispute resolution mechanisms, because the timing of escalation of disputes can be more effectively delayed if mediation comes first. She believes that plaintiffs want to be heard, and that mediation affords them that chance in a comfortable and confidential manner. Peggy R. Hoyt, former chair of The Florida Bar Animal Law Section, believes that mediation is better suited in boarding disputes, horse-breeding partnership disputes, and adoption or surrender of animals.
Examples of When and Why Mediation is Less Well Suited
Hoyt thinks that mediation is less well suited for misrepresentation disputes involving horses because such disputes typically involve highly opposite views of the facts and may depend on a battle of the experts. George Elser, an equine law attorney and mediator in Wayne, Pennsylvania, echoed this point. He views disputes against veterinarians as the most challenging kind of horse dispute. Such disputes not only involve a battle of the experts, but most veterinarian insurance policies provide that insurance companies cannot settle claims without the insured’s consent; and veterinarians do not readily admit to wrongdoing. Elser explained that horses are prone to health issues even with the best of care. He cited an example of a horse that was injured in a paddock. In such cases, it is hard to complain of a failure to use due care by the barn owner or trainer. Mediation of such disputes could provide for a creative solution, such as a period of free board to the horse owner. Elser offered that equine disputes often arise from misaligned expectations. He gave the example of a horse trainer and an owner who failed to communicate effectively about the time and money involved to reach a desired level of competition. Mediation may provide such parties a chance to improve communication and preserve their business relationship.
Let us consider the following hypothetical. An experienced horse owner in Florida notices that his horse appears ill, and he takes the horse to a local veterinarian. The veterinarian examines the horse thoroughly and tells the owner that the horse is suffering from colic and advises that emergency surgery is necessary to save the horse. The owner wants a second opinion. So, he takes the horse to another veterinarian, who examines the horse and disagrees with the first veterinarian’s diagnosis and advice, and sends the horse home with the owner with instructions to monitor the horse overnight. The horse takes a turn for the worse. Ultimately, emergency surgery is necessary to save the horse, but the cost is much greater and the recovery time much longer, due to complications allegedly caused by the interim delay. The owner sues the second veterinarian for professional malpractice, and claims the cost differential of the surgery and the longer recovery time as damages.
In litigation, the veterinarian’s insurance carrier gets involved and defends its insured vigorously. Emotions and litigation costs begin to run high on both sides. The case is ordered to mediation.
In mediation, the parties are encouraged by the mediator to check their emotions and work collaboratively on ways to resolve their dispute. Both parties are reminded that in disputes like theirs, the outcome may be based on a battle of the expert witnesses, which could be very expensive. In the end, the parties arrive at an amicable settlement that includes a private apology from the veterinarian and a payment of a portion of the damages sought.
Practical Tips for Equine Law Mediations
• Mediation Provisions — One way to be proactive concerning mediation of equine law disputes is to be sure to include a mediation provision in your transaction documents. Generally, complete mediation provisions will include: 1) a written promise to mediate first, prior to arbitration or litigation; 2) the location of the mediation; 3) the choice of the service to provide the mediation; and 4) the parties’ obligation to share the costs of the mediation equally. Some examples of mediation provisions are set forth below.
Mediation Provision Example 1 (for domestic U.S. transactions):
If a dispute arises out of or relates to this contract, or the breach of this contract, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure.
The place of the mediation shall be [CITY, STATE]. The parties agree to share equally the costs of the mediation. Each party will bear its own costs of participating in the mediation.
Mediation Provision Example 2 (party negotiation first, then mediation):
Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”).
Mediation — If the dispute has not been resolved by negotiation in accordance with paragraph A, then the parties shall proceed to mediation unless the parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The parties shall agree on a mediator; however, if they cannot agree within 14 days then [a local mediation service provider] shall appoint a mediator. The mediation session shall be held within 45 days of the retention of the mediator. During the course of the mediation, no party can assert the failure to fully comply with paragraph A, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise. All communications, both written and oral, during Phases A and B are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.
Mediation Provision Example 3 (for international cross-border transactions):
In the event of any dispute arising out of or in connection with the present contract, the parties shall first refer the dispute to proceedings under the ICC Mediation Rules. The Emergency Arbitration Provisions shall not apply.
• Selection of a Mediator — Selecting a mediator for equine law disputes is important to the process. One might ask whether in choosing a mediator, his or her knowledge of the horse industry matter?
Skilled mediators are accustomed to dealing with specialized industries and related concepts and terminology. Many mediators use pre-mediation conferences to educate themselves about the particular matter. In equine disputes, pre-mediation conferences would be a great way for mediators to learn what they need to know in order to prepare optimally for the mediation.
Julie I. Fershtman shared that in her experience, mediators who are familiar with the equine industry are more likely to be effective in resolving equine law disputes. Some of the reasons she gave include familiarity with horses, their behavior, anatomy and physiology, knowledge of equine terminology, experience with the kinds of issues that arise typically in such disputes, and how judges and juries might respond to certain facts and issues.
The Florida Bar Animal Law Section (ALS) is a good place to start in the selection of a mediator for equine law disputes. The ALS website lists members and their profiles. The recently formed Equine Law Committee of the ALS stands ready to assist attorneys and the public concerning the practice of equine law.
• Glossaries of Equine Terms — Many industries are laden with specialized terminology. The horse industry is no exception. Fortunately, there are online glossaries available to help mediators learn the horse industry terms they may encounter in equine law disputes.
In concluding our “trail ride” on the path of mediation of equine law disputes, we turn to the immortal bard for an inspirational quote about horses: “When I bestride him, I soar, I am a hawk: he trots the air; the earth sings when he touches it; the basest horn of his hoof is more musical than the pipe of Hermes.” We humans love our animals passionately. Our passion extends to the lengths to which we will go to protect and fight for them. We have offered some insights into why and how mediation is worth considering when passions run high and result in equine law disputes.
 Florida Department of Agriculture and Consumer Services, The Florida Horse Industry, available at http://www.thewillistonmile.com/PDFs/Florida_Horse_Industry_Brochure.pdf.
 The other indicia of the economic impact of Florida’s equine industry are equally impressive. Some 244,200 Floridians are involved in the horse industry, providing 72,000 jobs, and resulting in $2.2 billion in annual sales of goods and services. Land use by the equine industry in Florida includes 32 million acres of owned land and 49 million acres of leased land. A 2011 report on the economic impact of the Winter Equestrian Festival (WEF) on Palm Beach County alone reported $120 million impact annually. Ocala/Marion County is reported to have 900 horse farms. The state of Florida has 600 thoroughbred farms. Id.
 See Zendejas v. Redman, 2016 WL 1242349 (S.D. Fla. Mar. 30, 2016) (unpublished in F. Supp.). (“Article 2 of Florida’s version of the Uniform Commercial Code, which applies to ‘transactions in goods,’ governs this transaction. Fla. Stat. §672.102. ‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Ch. 678) and things in action. ‘Goods’ also includes the unborn young of animals….’ Fla. Stat. §672.105(1). This definition is broad enough to include horses.”)
 See Michigan State University College of Law, Animal Legal & Historical Center, Map of Equine Activity Liability Statutes (2018), available at https://www.animallaw.info/content/map-equine-activity-liability-statutes. Only California and Maryland do not have equine activity laws.
 A broader discussion of state equine activity liability laws is beyond the scope of this article. For a more in-depth treatment of this important topic, see Julie I. Fershtman, Equine Activity Liability Acts, Recurring Issues Impacting Insurers and Their Insureds, International Risk Management Institute, Inc., AgriCon Conference Paper (2016); Michigan State University College of Law, Animal Legal & Historical Center, Detailed Discussion of the Equine Activity Liability Act (2003); Timothy White, Equine Activity Statutes Aren’t Bulletproof When It Comes To Protecting Yourself, The Chronicle of the Horse (Nov. 18, 2009); Mark A. Wites, Back in the Saddle Again: An Analysis of Florida’s Equine Immunity Act, 71 Fla. B. J. 18 (Nov. 1997).
 See National Thoroughbred Racing Association (NTRA) Safety and Integrity Alliance, Code of Standards (2017), available at https://www.ntra.com/wp-content/uploads/2017-Code-of-Standards-Jan-1-2017-1.pdf.
 Peggy R. Hoyt, J.D., M.B.A., B.C.S., is the founding partner of Hoyt & Bryan, LLC, in Oviedo and the 2018-19 chair of the Animal Law Section (ALS) of The Florida Bar.
 Adapted from the New York City Bar, Compilation of Sample Mediation Clauses, Alternative Dispute Resolution Committee of the New York City Bar Association (June 8, 2016).
 See International Chamber of Commerce, ICC Mediation Clauses, https://iccwbo.org/dispute-resolution-services/mediation/mediation-clauses/.
 Julie I. Fershtman is an equity shareholder at Foster, Swift, Collins & Smith, P.C. Her 32-year career as a litigator, author, and lecturer has focused on business litigation, general insurance defense, insurance coverage, premises liability, contract disputes, sporting and recreational liability, fraud, and equine law.
 See The Florida Bar Animal Law Section List of Members, https://www.floridabar.org/about/section/section-an-mbrs/. The membership list is public, searchable, and includes a brief profile of each member. As of April 11, 2019, 505 ALS members were listed.
 The purpose of the ALS’s Equine Law Committee is stated on its webpage, as follows: “The Equine Law Committee is a substantive law committee of the section that promotes the exchange of ideas within The Florida Bar and with other [s]tate and [n]ational [b]ar [a]ssociations regarding [e]quine [l]aw matters. It provides information relevant to [e]quine [l]aw to the Bar and to the public through Bar and section-sponsored programs and publications. It assists attorneys and others in discharging their professional responsibilities to their clients in [e]quine [l]aw matters. The Equine Law Committee is charged with enhancing the image of the legal profession and examining the need for new procedures and statutes which will improve [e]quine [l]aw practice in Florida. See The Florida Bar Animal Law Section, Equine Law Committee, https://www.flabaranimals.org/equine-subcommittee.
 See Glossary of Horse Terminology, https://www.equisearch.com/resources/glossary-of-horse-terminology; Glossary of Equine Terms, https://en.wikipedia.org/wiki/Glossary_of_equestrian_terms; Equibase Industry Glossary, https://www.equibase.com/newfan/glossary-full.cfm; U.S. Pony Clubs, Inc. Glossary of Terms, https://www.ponyclub.org/Volunteers/Glossary.aspx; Daily Racing Form Glossary of Horse Racing Terms, http://www1.drf.com/help/help_glossary.html.
 William Shakespeare, Henry V.
Jeffrey H. Marcus is in solo practice in Wellington. His practice focuses on business law, employment law, equine law, and mediation. He is a Florida Supreme Court civil circuit certified mediator, and is admitted in Florida, New York, and Pennsylvania.
This column is submitted on behalf of the Animal Law Section, Matthew Dietz, chair, and Ralph DeMeo, editor.