Frequently Asked Questions

Both of these processes involve a neutral third person assisting the disputing parties in reaching a resolution of their dispute. The principal difference is how the neutral does so, i.e., who has final decision-making authority.  (There are some other differences, but this is the fundamental one.)

In mediation, the neutral helps the parties explore reaching a negotiated settlement, without forcing a deal or telling the parties what they must settle for.  

In arbitration, the neutral conducts an evidentiary process - typically but not necessarily by hearing witnesses testimony and by reviewing documentary exhibits - and then makes a decision about who wins and what that outcome looks like.  That decision may be either binding or nonbinding, based on what the parties' agreement to arbitrate or the court order of referral to arbitration says.

Unlike mediation (which, at least in Florida, has a clear path to certification), the path to becoming an arbitrator here in Florida is not as well-defined. 

First off, there is no Florida arbitrator license or certification as such. There are some prerequisites for certain kinds of arbitration (e.g., to serve as a court-appointed arbitrator, one must have taken a specific training course and, in many instances, must be a licensed attorney) but, fundamentally, one may serve as arbitrator for any dispute where the parties select you.  It is also important to recognize there are different kinds of arbitration: court-ordered nonbinding arbitration; court-ordered binding arbitration; and private binding arbitration. Each of these has its own path to becoming arbitrators. 

When we talk about “court-ordered” arbitration in Florida, we mean non-binding or binding arbitration that is an ADR method employed by courts to assist parties resolve cases that are pending in court. (This is analogous to a court referring a matter to mediation, to see if the parties can work out the dispute. It is different from private binding arbitration, where the parties have agreed, usually in a pre-dispute agreement, to arbitrate any disputes. In that latter kind of arbitration, the court is only involved if one of the parties demands arbitration and the other party refuses to arbitrate.) 

In court-ordered arbitration, whether non-binding (governed by Fla. Stat. § 44.103) or binding (governed by Fla. Stat. § 44.104), “[a]rbitrators shall be members of The Florida Bar, except where otherwise agreed by the parties. The chief arbitrator shall have been a member of The Florida Bar for at least five years. Individuals who are not members of The Florida Bar may serve as arbitrators only on an arbitration panel and then only upon the written agreement of all parties.” Fla. R. Arb 11.010. Moreover, to be appointed as the sole or chair of a multi-arbitrator panel on such a case, one must have completed a Florida Supreme Court-approved Court-Appointed Arbitration Training. Fla. R. Arb 11.020.  We offer that training – for more information and to register, click here. 

As to private binding arbitrations, which are convened under the Revised Florida Arbitration Code, Fla. Stat. Chapter 682, or the Federal Arbitration Act, 9 U.S.C. §§ 1 – 16, some are conducted in an ad hoc fashion, where the parties contact you to directly to arbitrate the case (as a sole arbitrator or as a member of a three-arbitrator panel). To serve as arbitrator in these cases, you must meet whatever criteria the parties’ arbitration agreement imposes, if any, and otherwise be acceptable to the parties. Many other private binding arbitrations are administered by third party organizations, such as, for example, the American Arbitration Association (“AAA”), the Federal Mediation and Conciliation Service (“FMCS”), the Financial Industry Regulatory Agency (“FINRA”), and these organizations often have their own criteria for admission to their roster of neutrals (i.e., on the lists submitted to parties to consider appointing as arbitrator). Here are links to these organizations’ paths to entry to their rosters:

· American Arbitration Association

· Federal Mediation and Conciliation Service

· Financial Industry Regulatory Agency

These are not the only rosters, but they are a good start. Indeed, FINRA is the easiest to start, since it requires no specific background and the initial arbitrator training is excellent as well as inexpensive or free. FINRA does not pay its arbitrators very much, but it is a great place to get experience arbitrating.

Likewise, conducting court-appointed arbitration in the Florida courts can give you good experience. To take a Florida Supreme Court-required Court-Appointed Arbitrator Training, click here: https://shulmanadrlaw.com/arbitrator-training.

Like becoming an arbitrator, there are several ways to become a mediator, based on whether the parties agree to you serving as a mediator or whether a court appoints you.  

In Florida, there is no mediator license, but there are five types of mediator certification,  based on the type of dispute or the amount of money involved.  These certifications are:  Circuit Civil (civil disputes where the amount in controversy exceeds $50,000); County (civil disputes where the amount in controversy is $50,000 or less - this includes Small Claims Court); Family (mediating pre- and post-judgment divorce cases and other family disputes); Dependency (related to when the State proposes to limit or terminate parental rights regarding children who have been allegedly abused or neglected); and Appellate (mediating disputes pending in appeals courts).  The path to certification for each of these areas entails taking the required training course (duration varies from 8 to 40 hours, depending on the type of certification sought), completing any mentorship requirements (observing, conducting, or comediating actual mediations of the certification type), submitting your application, and successfully completing a background screening.  Information regarding Florida Mediator Certification is available here: https://www.flcourts.gov/Resources-Services/Alternative-Dispute-Resolution/Mediator-Certification-Qualifications-Resources.

Note: while certification is not required to mediate a dispute - whether the dispute is in court or not - the parties gain certain advantages by using a mediator who is certified.  These include knowing their mediator has at least certain minimum training and the automatic application of the Florida Mediation Confidentiality and Privilege Act, Fla. Stat. §§ 44.401 - 44.406 to their mediation.