Arbitration

Arbitration is a process of alternative dispute resolution whereby the parties to a dispute present evidence to a neutral party, referred to as the arbitrator, who then renders a decision based on the evidence presented. Arbitration is similar to a trial, but is generally less formal than court and is conducted privately.

Arbitration may take place where the parties voluntary agree to arbitration or where arbitration is dictated by statute or contract. The outcome of the arbitration may be binding or non-binding on the parties.

Compelling Arbitration
If the parties to a lawsuit disagree as to whether a contract or agreement compels them to arbitrate the dispute, the court will analyze: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.' " Hillier Grp., Inc. v. Torcon, Inc., 932 So. 2d 449, 452 (Fla. 2d DCA 2006), quoting Stacy David, Inc. v. Consuegra, 845 So. 2d 303, 306 (Fla. 2d DCA 2003)).

Validity of the Arbitration Agreement
"In challenging the validity of an arbitration agreement, a party must assert defenses applicable to all contracts—defenses such as fraud, duress, or unconscionability." ManorCare Health Servs., Inc. v. Stiehl, 22 So. 3d 96, 99 (Fla. 2d DCA 2009). This court requires a party asserting the defense of unconscionability to demonstrate both procedural and substantive unconscionability. ''Bland, ex. rel. Coker v. Health Care & Ret. Corp. of Am.'', 927 So. 2d 252, 256 (Fla. 2d DCA 2006), abrogated on other grounds by Shotts v. OP Winter Haven, Inc., 36 Fla. L. Weekly S665 (Fla. Nov. 23, 2011). If [the] court determines that the arbitration agreement is not procedurally unconscionable, then it does not need to reach the issue of substantive unconscionability. Id. at 257.

"Procedural unconscionability relates to the manner in which the contract was made and involves issues such as the parties' relative bargaining power and their ability to know and understand disputed contract terms. [Bland, 927 So. 2d at 256.]  A court can also find a contract unconscionable if important terms are hidden in fine print or if the contract reflects an absence of meaningful choice on the part of the consumer.  See Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 265 (Fla. 2d DCA 2004)." FL-Carrollwood Care, LLC v. Gordon, 72 So. 3d 162, 165 (Fla. 2d DCA 2011).

In determining whether there was an absence of meaningful choice on the part of the complaining party, courts may consider "whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract, or whether the terms were merely presented on a 'take-it-or-leave-it' basis; and whether he or she had a reasonable opportunity to understand the terms of the contract." Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 284 (Fla. 1st DCA 2003).