Monday, April 09, 2007

“But Judge, I Really Want To Mediate!”

Coastal Systems Development, Inc. v. Bunnell Foundation, Inc., 2007 Fla. App. LEXIS 4900 [Fla. 3rd DCA 2007] involved a consolidated appeal from the trial court’s non-final order denying a motion to compel mediation, for stay pending arbitration and to strike notice for trial, as well as the trial court’s non-final order denying a motion to compel arbitration.

In this breach of contract action, Appellant moved to dismiss the complaint based on a mediation provision contained in the contract. The trial court heard Appellant’s motion to stay the proceedings pending mediation and denied it because Appellant would not provide Appellee with a copy of certain financial documents in connection with the project [under the contract the parties were to share equally in all profits]. The trial court reasoned that Appellee could not determine the profits thereby making mediation useless without Appellant’s production of the requested documents [imagine that!!].

Appellant obtained new counsel who filed another motion to compel mediation, even though the trial court previously had ruled on the issue. Guess what – denied!

The Third District Court of Appeal held that the trial court properly denied Appellant’s motion to compel mediation and to abate the action pending mediation – the motion had been previously denied. The prior denial of mediation was not an appealable order. Twice denied – twice non-appealable!

The opinion also addresses Appellant’s waiver of its right to arbitrate by actively participating in the lawsuit.

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