Legislation seeks to clarify, expand Florida’s voluntary trial resolution process
Floridians would have easier access to private judges under a bill the Business Law Section contends would also help relieve crowded civil dockets.
Republican Rep. Bill Partington, an assistant public defender and former Ormond Beach mayor, filed HB 965, “Voluntary Trial Resolution” on January 5.
The bill would substantially rewrite a 1999 law to clarify procedures that consenting parties can use to hire a “Voluntary Trial Resolution” judge to hear their case.
Allison J. Leonard, a partner with the Miami firm Damian Valori Culmo, serves on the Business Law Section Executive Council.
“It’s a straightforward, non-controversial bill,” she said. “It’s a process that already exists, we’re not adding any rights, we’re just seeking to clarify it, make it user friendly, and make it understandable.”
A 15-year business litigator and member of the Civil Procedure Rules Committee, Leonard chairs a Business Law Section taskforce that spent a year reviewing §44.104 “Voluntary binding arbitration and voluntary trial resolution.”
For a quarter century, the law has authorized parties in Florida who agree, and who are willing to foot the bill, to hire a private judge to resolve certain civil disputes, “provided no constitutional issue is involved.”
The existing law requires VTR judges to be a Florida Bar member in good standing for five years. In addition to “constitutional” issues, the law excludes matters involving child custody, visitation, and the rights of third parties.
Florida is one of 30 states that authorize some form of private judges, the taskforce found, but §44.104 is rarely used.
“One, it’s not widely known as an option for litigants, and two, it’s not a model of clarity,” Leonard says.
Two taskforce members, retired 11th Circuit Judge Jennifer Bailey and retired 11th Circuit Judge Alan Fine, recently served as VTR judges, Leonard says. The taskforce found that procedures for VTR judges can vary by venue.
“There were voluntary trial resolutions being done in several different jurisdictions in Florida, and it’s different in each one, because the clerks have varying levels of knowledge of what to do when a case is referred,” Leonard says.
Anecdotal evidence “strongly suggests” that ambiguities in the statute and “differences, perceived or actual, in procedure and remedies between proceedings before a court and a voluntary trial resolution judge, have caused many attorneys to be reluctant to use voluntary trial resolution judges under the statute," a taskforce white paper concluded.
To make the law clearer, bill would remove all references to binding arbitration. Sponsors say the provisions became obsolete when Florida enacted Chapter 82, the Revised Florida Arbitration Code.
The bill would preserve limited oversight by a presiding judge, but he or she would be required to assign a case to a VTR judge within 10 days after consenting parties file a motion.
“It’s a mandatory referral of the presiding judge, that’s not a request that they can deny, and that’s clarified here in the bill,” Leonard says.
Other changes spell out case assignment, record keeping, the oath that must be administered to a VTR judge, the judicial canons that govern a VTR judge, and procedures for recusal. The bill makes it clear that Florida Rules of Civil Procedure, Family Law Rules of Procedure, or Probate Rules, apply. It authorizes VTR judges to conduct jury trials.
Another revision makes it clear that cases are noticed and open to the public, to the same extent as traditional court proceedings.
“There was a concern on the task force about this being a secret process,” Leonard says. “The idea here is to make everything as close to a regular civil case as possible, but by mutual consent.”
The process allows business litigants to have more control over the pace of litigation, and to have their matters resolved by a judge who may be more familiar with their issues, Leonard says.
“Any time the litigants have control over the process, whether it be pacing, or subject-matter expertise, having the option available, having clarity and certainty as to what the provisions mean, always benefits the business community.”
The process will not replace complex business litigation divisions that exist in Florida’s larger circuits, but for the circuits that do not have a division, "this could be an answer," Leonard says.
Parties with less complicated disputes could also benefit, if they can agree on a VTR judge who charges a reasonable fee.
“The rates of the voluntary trial resolution judge are whatever the VTR judge charges and what the parties agree to pay,” she says. “So, I can foresee smaller cases being able to choose their own voluntary trial resolution judge at a rate that fits them.”
The entire civil justice system benefits when VTR judges manage cases that would otherwise be consuming court resources, the white paper notes.
“The proposed amendments to the statute will provide much more certainty and encourage litigants, where appropriate, to utilize this powerful alternative dispute resolution mechanism to resolve cases more expeditiously, relieve the congestion of court dockets, and enhance the administration of justice.”
HB 965 has been referred to the House Civil Justice & Claims Subcommittee and Judiciary. It has yet to be heard.
Democratic Sen. Lori Berman, a Boca Raton Lawyer, filed a companion, SB 1424, on January 8.
It has also yet to be heard, but there is still plenty of time. The 60-day regular session began January 13.
