In The Auchter Co. v. Zagloul, 2007 Fla. App. LEXIS 3292 [Fla. 1st DCA 2007] the First District Court of Appeal reversed a trial court’s order denying Appellant’s Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action filed in response to a complaint stating causes of action based on a standard American Institute of Architects [AIA] contract between Appellant [as the contractor] and Appellee [as the owner] to build a house. The trial court denied the motion because it determined that the mandatory mediation and arbitration provisions of the contract did not survive Appellee’s termination of the contract.Talk about frustration – reading the ADR provisions of the contract as the trial court did would permit parties to avoid ADR simply by purporting to terminate the contract – so much for the public policy of broadly interpreting ADR contract provisions in favor of resolving controversies out of court!
The First District held that the dispute resolution provisions of the contract are intended to survive purported termination of the contract by a party [unless there is a clear intent to the contrary] and reversed and remanded the case with directions that the trial court order Appellee to proceed to mediation and, if mediation fails, to binding arbitration, as contemplated by the agreement he signed, and that it stay further court proceedings pending compliance with that order.
So, do you think the same person should be both the mediator and also the arbitrator? [Nope!]
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