Effective July 1, 2013, most new arbitration agreements between Florida parties are subject to the Revised Florida Arbitration Code (RFAC), Chap. 682, Fla. Stat. (2013). Here are some of the highlights:
Arbitration Agreement. The RFAC provides that many of its provisions may be waived or varied by the parties, but some may not. The RFAC specifies that the court decides whether the agreement is enforceable and whether it applies to a specific controversy, but the arbitrator decides whether the arbitration clause is enforceable and whether conditions precedent to arbitrability have been fulfilled. Fla. Stat. § 682.02(2) – (4) (2013). Moreover, the sections relating to motions to compel/stay arbitration have been updated. Fla. Stat. § 682.03 (2013).
Initiation of Arbitration. Parties commence arbitration using the method they have provided in their agreement; if none, then by certified mail or service of process. Separate arbitrations may be consolidated by the court, unless prohibited by the arbitration agreement(s), and waivers of class arbitration retain their validity. Fla. Stat. §§ 682.032, 682.033 (2013). Waivers of class arbitration are enforceable under the Federal Arbitration Act, whether the substance of the claim being arbitrated is a creature of state or federal law. American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2312 (2013); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 178 – 1752 (2011). The Florida Supreme Court has followed Concepcion, acknowledging that the Federal Arbitration Act preempts state law. McKenzie Check Advance of Florida, LLC v. Betts, 112 So. 3d 1176, 1183 – 1188 (Fla. 2013). The arbitrator appointment process has been streamlined and prevents appointment of a non-party arbitrator with a clear conflict of interest. I.e., an arbitrator “who has a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party.” Fla. Stat. § 682.04 (2013). Arbitrators must disclose potential conflicts of interest and may only serve if all parties consent after such disclosure. Fla. Stat. § 682.041 (2013).
Provisional Remedies. The RFAC allows the arbitrator (or the court, before an arbitrator has been appointed) to order interim relief. Parties may challenge/enforce such interim orders of provisional relief, in much the same manner as an arbitration award. Fla. Stat. §§ 682.031, 682.081 (2013).
Arbitrators. Arbitrators have judicial immunity under the RFAC, even if they don’t disclose properly, and cannot be called to testify (or produce documents) other than in a proceeding brought by the arbitrator against a party (limited to what is needed to establish the arbitrator’s claim) or when a party has established prima facie basis for vacating an award based on arbitrator misconduct. Fla. Stat. § 682.051 (2013). Arbitrators are also entitled to their reasonable attorney’s fees and costs if the court determines the arbitrator is immune or is not required to testify. Id.
Prehearing Procedures. Arbitrators may permit discovery as they deem appropriate, considering “the needs of the parties ... and other affected persons and the desirability of making the proceeding fair, expeditious, and cost effective.” They may issue subpoenae for appearance or duces tecum at hearing or “at a discovery proceeding” and may issue protective orders. Fla. Stat. § 682.08 (2013).
Arbitration Hearings. Scheduling and conduct of the hearings is more streamlined. Fla. Stat. § 682.06 (2013). Arbitrators may rule on motions for summary disposition, with due notice; final evidentiary hearings are no longer required. A hearing ― summary or final ― may move forward in the absence of a party, if that party has received due notice. Parties still have the right to be heard, present evidence, and cross-examine witnesses appearing at a final hearing. Fla. Stat. §§ 682.05, 682.06 (2013).
Awards. Arbitrators may award punitive damages or attorney’s fees and costs, if such would be available in a civil action involving the same claim(s). Awards may be modified or corrected by the arbitrator, on motion submitted within 20 days after receipt of the award; opposing party has 10 days to object. Alternatively, on motion to confirm, vacate, or modify the award, the court may rule, after taking what evidence the court deems necessary, or may submit some types of modifications or corrections to the arbitrator to resolve. Fla. Stat. §§ 682.09 – 682.10, 682.12 – 682.14 (2013).
The Federal Arbitration Act still pre-empts arbitration clauses involving disputes related to “maritime transactions” or “interstate commerce” as defined in 9 U.S.C. §1. An exception to the pre-emption exists where the parties have specifically stated that the law of Florida would govern the agreement. Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468 (1989).
The RFAC will apply to all non-pre-empted arbitration agreements as of July 1, 2016, and applies to any pre-existing agreement where the parties agree it will apply. Fla. Stat. § 682.013 (2013).