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).

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