Florida’s civil courts are under pressure to move cases to trial faster than they have moved them in decades. The 2025 amendments to the Rules of Civil Procedure require case management orders assigning cases to streamlined, general, or complex tracks within 120 days of filing, disfavor motions to continue trial without good cause, and permit trial to be set before pleadings close. The intent is to reduce the backlog that has accumulated across the state and to give parties a defined path to resolution. The mechanism is a set of tighter procedural expectations imposed on counsel and clients alike.
The tighter procedural expectations produce a specific cost. Parties who could previously prepare their cases for trial across eighteen months are now being asked to prepare them across twelve, or nine, or less. Discovery that would previously have been staged is being compressed. Expert work that would previously have been sequenced is being paralleled. Fees that would previously have been spread across quarters are being concentrated. The judicial goal of moving cases to trial faster is meeting the practical reality that trial preparation for a complex commercial matter is expensive, and doing it on a compressed timeline is more expensive than doing it on a natural one.
Meanwhile, one of the mechanisms Florida law provides for reducing the pressure on both the docket and the parties has been sitting largely unused for years. Section 44.103 of the Florida Statutes authorizes courts to refer any contested civil action to non-binding arbitration under procedures established by Rule 1.820 of the Florida Rules of Civil Procedure. The statute has been on the books since 1987. The rule is comprehensive. The framework is complete. The tool is available. It is not being used.
I have practiced commercial litigation in Florida for thirty-seven years and now also sit as a neutral in mediation and arbitration. What follows is what court-ordered non-binding arbitration under Section 44.103 actually is, why the judiciary has largely stopped ordering it, why the current moment is exactly when it should be reconsidered, and what the tool can do that mediation and trial cannot.
What the tool actually is.
Court-ordered non-binding arbitration under Section 44.103 and Rule 1.820 is a summary evidentiary proceeding before an arbitrator or a three-arbitrator panel, ordered by the court, conducted informally, and producing a written decision that is binding on the parties unless a party files a motion for trial de novo within twenty days of the decision. The presentation is compressed. Testimony and evidence are kept to a minimum, and the parties present their cases primarily through statements and argument of counsel. The hearing must be completed within thirty days of the first arbitration hearing, subject to extensions not exceeding sixty days from the first hearing. The written decision must issue within ten days of the hearing’s adjournment.
If any party files a motion for trial de novo within the twenty days, the decision is not entered as a judgment and the case proceeds to trial in the ordinary course. The arbitration decision itself is filed under seal so that the presiding judge does not learn its contents unless the twenty-day window closes without a motion for trial. If no motion for trial is filed, the decision becomes a judgment.
The mechanism includes a fee-shifting provision that gives it teeth. Under Section 44.103(6), a party that files for trial de novo and then obtains a judgment materially less favorable than the arbitration decision may be assessed the arbitration costs, court costs, and other reasonable costs, including attorneys’ fees, incurred by the opposing party after the arbitration decision. The fee-shifting is not automatic and depends on specific statutory thresholds and the court’s exercise of discretion, but the possibility of it changes the calculus of whether to reject the arbitration decision and proceed to trial. Parties facing a fee-shifting risk sometimes accept an arbitration decision they would otherwise have contested, and the acceptance becomes a judgment.
The framework is elegant. The proceeding is faster than trial and cheaper than trial. The decision is not binding, so the parties retain their right to a jury and to full trial preparation. The fee-shifting provides incentive to accept the decision if the arbitrator’s evaluation is close to what a jury would produce. The judiciary retains control over which cases go to arbitration and can select the ones for which the tool is likely to work.
Why the judiciary has largely stopped ordering it.
The tool was used more frequently in the 1990s and early 2000s than it is used now. Its decline has multiple causes.
The rise of mediation as the default court-ordered ADR mechanism absorbed most of the docket-clearing role that non-binding arbitration had previously served. Mediation is less demanding to schedule, less expensive to conduct, and more flexible in outcome. A court referring a case to mediation is not committing anyone to a specific evidentiary proceeding; the parties can proceed as informally as they want and can walk away without a decision. Non-binding arbitration is a more structured process that requires more from the parties and produces a decision the parties then have to accept or reject. Judges facing a choice between the two have tended to order mediation.
The perception developed among some practitioners that non-binding arbitration was inefficient because it added a step to litigation that parties would then not accept. If both sides prepare for the arbitration, the decision issues, and one side files for trial de novo, the parties have spent time and money on a proceeding whose result did not resolve the case. That perception is not entirely wrong, but it treats every non-binding arbitration as if it were destined to be rejected, which is not what the data suggested when the tool was more commonly used.
The specific procedural requirements of Rule 1.820, including the compensation of the arbitrators, the mechanics of setting the hearing, and the filing-under-seal procedures for the decision, produced enough administrative friction in some circuits that judges found the tool more trouble than it was worth. That friction was manageable when the tool was in regular use and the administrative infrastructure knew how to handle it. As the tool fell into disuse, the friction increased because the infrastructure atrophied, which reinforced the tool’s decline.
The fee-shifting provision, which is one of the tool’s genuine strengths, was subject to appellate interpretation that constrained its practical utility in ways that reduced its deterrent effect. Counsel who understood the statute correctly could evaluate the risk of trial de novo; counsel who did not could underestimate it. Either way, the fee-shifting became a less reliable driver of settlement than it might have been under simpler statutory language.
The cumulative effect was that non-binding arbitration became a tool that most judges did not order, most practitioners did not request, and most commercial litigators did not think about. It has remained on the books, and the rule is available for any court to invoke, but the tool has receded from active use.
Why the current moment is exactly when it should be reconsidered.
The 2025 procedural amendments have changed the dynamic that produced the tool’s decline. Docket pressure is now the central operational reality of Florida civil courts. Trial dates are being set earlier and continuances are being denied more often. Cases that would previously have moved on a two-year timeline are being pushed toward one-year timelines. The judicial system is asking parties to be trial-ready faster than the parties can naturally get there, and the cost of the compression falls on the parties in fees, expert costs, and staff time.
In this environment, non-binding arbitration is not the redundant procedural step it may have looked like a decade ago. It is a targeted mechanism for resolving cases before trial preparation reaches its most expensive phases. A commercial dispute that gets to a non-binding arbitration hearing after fact discovery has been completed but before expert reports have been finalized and before the pretrial motions have been briefed can be evaluated by a competent arbitrator on a substantially compressed record. If the parties accept the decision, the case ends. If they do not, both sides have obtained an experienced practitioner’s evaluation of the case that they can use to calibrate their trial preparation and their settlement discussions going forward. Either outcome is more useful than the alternative of proceeding through the expensive final months of trial preparation without an evaluation from anyone whose job is to look at the case objectively.
Mediation, which the courts have preferred as the ADR mechanism, does not perform the same function. A mediator does not evaluate the case; a mediator facilitates the parties’ evaluation of their own case. That is valuable, but it is not the same as an evaluation by an experienced neutral who has heard both sides present their evidence in an evidentiary proceeding. Non-binding arbitration produces the evaluation. Mediation does not. In a case where the parties disagree not about their willingness to settle but about the value of the case, the mediator can facilitate the conversation but cannot resolve the underlying evaluative disagreement. An arbitrator conducting a Section 44.103 hearing can.
The cost profile also favors non-binding arbitration in the compressed-timeline environment. A one-day or two-day non-binding arbitration hearing costs a fraction of the trial preparation the parties are otherwise being pushed to complete. If the arbitration produces a resolution, the trial preparation costs are avoided. If the arbitration does not produce a resolution, the parties have obtained meaningful information about the case at a cost that is substantially less than the cost of proceeding through trial preparation without that information.
The fee-shifting mechanism, imperfect as its practical application has been, adds an additional layer of resolution incentive that mediation does not provide. A party who receives a non-binding arbitration decision and considers whether to file for trial de novo is facing not only the cost of continuing but also the possibility of adverse fee-shifting if the eventual trial outcome is materially less favorable than the arbitration decision. That calculus, added to the cost of continuing and the risk of the trial itself, produces settlement pressure that mediation-only ADR does not produce.
What the tool can do that mediation and trial cannot.
Court-ordered non-binding arbitration under Section 44.103 sits between mediation and trial in a way that neither of the other two mechanisms can replicate.
Mediation is a facilitated negotiation. It produces settlement when the parties are willing to settle and produces nothing when they are not. Its structure is deliberately non-evaluative, which is its strength for cases where facilitation is what is needed and its weakness for cases where the parties genuinely disagree about the value of the case and would benefit from an outside evaluation. Mediation does not produce a decision. It cannot resolve a case in which one side is convinced the case is worth more than the other side is convinced it is worth.
Trial is the full-scale adjudicative proceeding, expensive in every respect and slow to schedule even under the 2025 amendments. It produces a decision, but it produces it after every party has borne the full cost of preparation. Trial is the mechanism for cases that require the full evidentiary and adversarial framework to resolve. It is not the mechanism for cases that could be resolved earlier with less cost if an evaluation were available.
Non-binding arbitration produces an evaluation. It gives the parties the outside look at their own case that mediation cannot provide and that trial provides only after the parties have already spent what trial preparation costs. It does so on a compressed timeline that fits within the compressed trial-preparation window the 2025 amendments have created. Parties who accept the decision resolve the case. Parties who do not have obtained information they can use in the settlement discussions that will happen anyway during the final months of trial preparation. The tool serves the cases that mediation cannot resolve and that trial should not have to reach.
The specific case types where the tool works best.
Not every case is a candidate for non-binding arbitration. The tool works best for cases with certain characteristics.
Cases where the parties’ disagreement is primarily evaluative rather than positional. If both sides want to resolve the case but disagree about what the case is worth, a non-binding arbitration decision from a competent neutral gives the parties a data point neither could produce for the other. If the parties’ disagreement is about willingness to resolve rather than about value, mediation may be the better tool.
Cases where the legal and factual issues can be presented on a compressed record. Commercial cases with contained factual disputes, insurance coverage cases with clear policy language and known loss facts, and construction cases with defined project records can often be presented in a one-day or two-day hearing. Cases with sprawling factual records, extensive expert testimony, or complex issues of law that require full briefing may not fit the format.
Cases where the amount in controversy is meaningful but not so large that the parties will proceed to trial regardless of what the arbitration decision says. The fee-shifting risk under Section 44.103(6) provides settlement incentive at moderate case values. At very large case values, the incentive is diluted because the fee-shifting exposure is small relative to the amount at stake. At very small case values, the arbitration hearing may cost more than the case is worth. The sweet spot is the substantial commercial dispute, which is what much of the Florida circuit court docket actually is.
Cases where the parties have completed enough fact discovery to present the case meaningfully but have not yet incurred the full costs of expert reports and trial preparation. Ordering non-binding arbitration too early produces a hearing on an underdeveloped record. Ordering it too late means the parties have already spent the money the tool was supposed to save. The middle window, between the completion of fact discovery and the finalization of expert work, is where the tool produces the most value.
The judicial infrastructure question.
Reviving non-binding arbitration under Section 44.103 as a regularly used tool would require some rebuilding of the judicial and administrative infrastructure that supported it a generation ago. The chief judge of each judicial circuit is authorized under Rule 1.820(b) to establish procedures for the expeditious operation of arbitration hearings, and administrative orders in circuits that continue to use the tool address the mechanics of setting hearings, filing decisions under seal, and processing motions for trial de novo. The infrastructure exists in principle. Whether it is currently sufficient to handle a substantial increase in referrals is a question that varies by circuit.
The judiciary considering a return to more regular use of Section 44.103 would benefit from starting with cases whose characteristics make them strong candidates for the tool, developing administrative procedures that reduce the friction that contributed to the tool’s earlier decline, and using the fee-shifting provision as it was designed to be used, with clarity about the standard and consistent application across cases. Judges who order the tool selectively and skillfully will produce data points that other judges can consider.
The alternative, which is the current default of relying on mediation as the primary ADR mechanism while pushing trial-preparation timelines shorter, has cost implications for the parties that the judiciary should consider. Mediation is the right tool for many cases and the primary tool the courts should continue to use, but it is not the only tool the parties or the courts have. Section 44.103 has been available for four decades. The Florida legislature adopted it, the Florida Supreme Court promulgated the implementing rule, and the mechanism has performed as designed in the cases where it has been used. In an environment where docket pressure and trial-preparation costs are both increasing, the tool that resolves cases before those costs are fully incurred deserves renewed attention.
Closing observations.
Court-ordered non-binding arbitration under Section 44.103 is not a solution to every case, and it is not a substitute for mediation or for trial. It is a specific tool designed for a specific set of cases, one that has fallen into relative disuse and that the current procedural environment gives new reasons to reconsider. Judges facing dockets under pressure and parties facing compressed trial-preparation timelines can benefit from the tool’s targeted application in the right cases. The framework is complete, the statute is on the books, the rule is in place, and the neutrals are available. What is missing is the judicial and practitioner recognition that the tool remains worth using.
The mediation and arbitration practice at Rosenthal Resolutions is available to serve as arbitrator or chief arbitrator in Section 44.103 proceedings, in commercial and civil matters throughout Florida. Judges considering the tool for particular cases and counsel evaluating whether to move for referral to non-binding arbitration are welcome to reach out.
About the Author
Alex P. Rosenthal and Rosenthal Law Group represent clients in commercial litigation and appellate matters throughout Florida. He is also available as a neutral for mediation and arbitration. This article is offered for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship, and it should not be relied upon as a substitute for the advice of qualified counsel regarding the specific facts and circumstances of any particular matter. You may contact our office at 954-384-9200 or www.rosenthalcounsel.com to discuss your matter.