Reducing Court Backlogs: The Expanding Role of Alternative Dispute Resolution In Differentiated Case Management in Florida

Thu, Sep 12th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

Differentiated case management (DCM) is not a new concept; however, recent changes in Florida law have profoundly affected the need to apply the concept and in turn has expanded the need for the use of alternative dispute resolution (ADR) in civil cases in Florida. The changes began during the COVID-19 lockdown with the Florida Supreme Court’s administrative order designed to aid the courts in dealing with the backlog of cases caused by the lockdown and included recommendations from a workgroup which had been created to address the issues.

Since that administrative order mandating DCM, there have been more changes, including the tort reform statutes that became effective in March 2023 and new rules of court adopted by the Florida Supreme Court. In January, additional guidelines for judges codified in the Florida Rules of Judicial Administration and General Practice along with related reporting requirements will become effective and further impact the timetable to resolve cases. Here’s a closer look at how this is affecting the courts in Florida, and the attorneys who practice here.

The Origin of Differentiated Case Management

DCM is not a new idea. According to the Office of Justice Programs (OJP) of the Department of Justice (DOJ), DCM had its beginnings in 1986 when “the Superior Court in Bergen County, New Jersey, had adopted in March 1986, a pilot DCM program designed by the New Jersey Administrative Office of the Courts.” The OJP noted that, “inherent in the concept of DCM is the recognition that many cases can — and should — proceed through the court system at a faster pace than others if appropriate pathways are provided. Under a DCM system, cases do not wait for disposition simply on the basis of the chronological order of their filing.”

As early as 2009, the Office of Program Policy Analysis and Government Accountability (OPPAGA), an office of the Florida legislature, stated in a report that case management in Florida courts needed improvement and noted there were no existing standard guidelines. (Various guidelines existed among the 20 circuits in Florida.) Although the National Center for State Courts and other organizations have supported the implementation of DCM, it has been applied inconsistently between and even within various judicial circuits.

Among the many changes occurring in response to the pandemic, in April 2021 the Florida Supreme Court entered an administrative order requiring case management to be implemented in all civil cases throughout the state. Workgroups impaneled by the Florida Supreme Court and input from the Florida bar led to subsequent changes to The Florida Rules of Civil Procedure. Some of these changes have already been implemented, leading to greater consistency in all courts in Florida. The additional changes will take full effect in January 2025.

The Effect of These Changes on Florida Courts

With enhanced reporting requirements expected of the courts, litigants and lawyers are going to be pushed to the limit to resolve cases within the time periods recognized by the Rules of Judicial Administration and General Practice. Realistically, cases are all being scheduled for trial at the time of filing in compliance with the recommended time periods, and courts are strongly discouraged from granting continuances of these cases. In addition to the requirement of the entry of a case management order based upon DCM, state judges will have to report the status of their cases to the Florida Supreme Court to ensure compliance with time guidelines based upon the various categories of cases.

Under the new guidelines, cases are placed into one of three categories at the time of filing: streamlined, general, and complex. The Florida Supreme Court, when implementing the Florida Rules of Civil Procedure, required that all circuits create and implement administrative orders consistent with the guidelines set forth in the rules.

The Impact of Florida Tort Reform Law

Amid the pressures being placed upon the courts due to the pandemic and workgroup recommendations, the Florida legislature enacted tort reform that dramatically increased the numbers of civil lawsuits in Florida in a compressed timeframe. Because of the dramatic statutory changes affecting proof and recovery of damages, plaintiff’s lawyers filed thousands of cases immediately before the implementation date of the new tort law in March 2023. That law included changes concerning the recovery of attorney fees in suits against insurance companies, so lawyers also filed many first-party property cases immediately before the law went into effect.

In all, tens of thousand of lawsuits were filed in a limited time frame to beat the deadline of March 23, 2023 in what is often now referred to as “March Madness.” The result is a dramatic increase in the number of pending cases working their way through the system.

Because of the mandatory timeframe to set trial dates, the short-term effect of these combined changes is a backlog of cases that has led to even greater backlogs and pending case loads. This logjam will reach a pressure point in the immediate future, which alternative dispute resolution (ADR) can help relieve.

ADR Options

The two most common forms of alternative dispute resolution are mediation and non-binding arbitration. Florida ADR statutes also contemplate the additional options of voluntary binding arbitration and voluntary trial resolution. Many of the case management orders first drafted in response to the initial administrative order of the Florida Supreme Court contained a requirement for the utilization of non-binding arbitration although that requirement may have been modified in subsequent versions of the orders. Most of the case management orders require parties to attempt some form of ADR before proceeding to trial.

Florida law also provide for the use of an arbitrator or a “trial resolution judge” who can oversee a trial of a matter as an additional form of ADR. A trial resolution judge “may determine any question and render a final decision.” In addition, the judge has the authority to “issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production.”

An Opportunity to Help Relieve Crowded Court Dockets

While backlogs are likely to only worsen, these recent laws present an opportunity for neutrals to serve the court and the bar to help resolve them. Florida lawyers are double- and triple-booked for trial weeks, and court trial dockets are 50 or more deep for every trial period. Voluntary resolution of disputes is necessary for the success of the system, and the new laws that attempt to promote the speedy resolution of cases can be enhanced by efficient and effective ADR. Litigants and neutrals alike should work together to help promote efficient case management and resolution — and to better serve the parties involved.

*Originally published in the Daily Business Review and reprinted with permission.

About Mike Peacock

Mike Peacock’s career as a litigator, which includes more than 40 years of law practice, prepared him to be an outstanding mediator and arbitrator. Mike’s training and education as a police officer, an ordained pastor, and years of experience in client counseling and pastoral counseling gives him deep insight into litigants, lawyers, and their positions and expectations in litigation.