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?But Judge, I Really Want To Mediate!?

By Perry S. Itkin, J.D., M.S.

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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Full post as published by Florida Mediator on April 09, 2007 (boomark / email).