Thursday, June 24, 2010

Arbitration - Part IV

B. Selection of Arbitrators for Non-AAA Arbitrations

1. If an agreement for arbitration provides a method for the appointment of arbitrators, that method must be followed as long as it is fundamentally fair. Fla. Stat. § 682.04.

2. If there is no agreement or if the agreement fails, the court, on application of a party, shall appoint one or a panel of three arbitrators. Fla. Stat. § 682.04; Fla. R. Civ. P. 1.810(a). Each of the arbitrators must either: (a) be a member of The Florida Bar, with the chief arbitrator being a member of The Florida Bar for at least five years; or (b) serve on the arbitration panel with the written consent of all parties.

C. Arbitrators’ Jurisdiction and Scope of Submission

1. The following categories of actions may not be referred to arbitration by the Court:
a. bond estreatures.
b. habeas corpus or other extraordinary writs.
c. bond validations.
d. civil or criminal contempt.
e. any other matter specified by the chief judge in the circuit.
Fla. R. Civ. P. 1.800.

2. An arbitrator exceeds his or her power when he or she goes beyond the authority granted by the parties through the operative document and decides an issue not within the scope of the arbitration clause or not pertinent to the resolution of the issues submitted to arbitration. Chandra v. Bradstreet, 727 So. 2d 372 (Fla. 5th DCA 1999), rev. den., 741 So. 2d 1134 (Fla. 1999); Applewhite v. Sheen Fin. Res., Inc., 608 So. 2d 80 (Fla. 4th DCA 1992).

3. The Federal Arbitration Act controls where an arbitration agreement expressly provides that the agreement was made pursuant to a transaction involving interstate commerce and would be governed by the Federal Arbitration Act. Checksmart v. Cardegna, 824 So. 2d 228 (Fla. 4th DCA 2002). The Federal Arbitration Act, however, is outside the scope of these materials.

4. Statutory and intentional tort employment claims are also arbitrable, such as hostile work environment, malicious defamation, tortious interference with business relationships and intentional infliction of emotional distress, where the parties are subject to a written arbitration contract that provides for binding arbitration of "any and all claims and disputes that are related in any way to my employment or the termination of my employment." Henderson v. Idowu, 898 So. 2d 451 (Fla. 4th DCA 2002).

Tuesday, June 15, 2010

Arbitration - Part III.

B. Waiver of Right to Arbitrate

1. The right to arbitration under an agreement may be waived by taking actions inconsistent with the arbitration provision. The court (not the arbitrator) determines whether a party to an arbitration agreement has waived its contractual right to arbitration by its subsequent conduct. Florida Educ. Assoc. v. Sachs, 650 So. 2d 29 (Fla. 1995).

2. Where one party actively participates in litigation which is the subject of an arbitration agreement before moving to compel arbitration, that party is deemed to have waived any right to compel arbitration. Hansen v. Dean Witter Reynolds, Inc., 408 So. 2d 658 (Fla. 3d DCA 1982), rev. den., 417 So. 2d 328 (Fla. 1982); Ojus Indus., Inc. v. Mann., 221 So. 2d 780 (Fla. 3d DCA 1969).

3. Such a waiver will be found where the party files an answer or affirmative defenses, takes discovery or files any claim for affirmative relief in a lawsuit, including a counterclaim before moving to compel arbitration. Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So. 2d 69 (Fla. 3d DCA 1987); Winter v. Arvida Corp., 404 So. 2d 829 (Fla. 3d DCA 1981); but see Avid Engineering, Inc. v. Orlando Marketplace Ltd., 809 So. 2d 1 (Fla. 5th DCA 2001) (motion for arbitration and counterclaim at same time does not waive right).

4. “All questions concerning the scope or waiver of the right to arbitrate under contracts should be resolved in favor of arbitration rather than against it.” GBR3 v. Largo Dev. Corp., 807 So. 2d 723 (Fla. 3d DCA 2002), quoting Beverly Hills Dev. Corp. v. George Wimpey of Fla., Inc., 661 So. 2d 969, 971 (Fla. 5th DCA 1995).