COMMERCIAL ARBITRATION: PROVISIONAL RELIEF – A LIMITED CIRCUMSTANCE WHERE COURTS CAN INTERFERE WITH ARBITRATION PROCEEDINGS

Arbitration proceedings, and their outcomes, are generally not subject to the interference or review of a court. However, Section 682.031 of the Revised Florida Arbitration Code allows courts to issue and review provisional remedies that involve parties to ongoing arbitration proceeding. Provisional remedies can protect an arbitration-party to the same extent that the party would be protected in a traditional civil action. Provisional remedies are equitable in nature and include attachment, garnishment, replevin, and temporary injunctions such as temporary restraining orders or preliminary injunctions. Peter Mavrick is a Fort Lauderdale commercial arbitration attorney who has significant experience with assessing the validity of arbitration clauses and successfully representing clients in arbitration proceedings.

If a party to an arbitration proceeding meets the statutory legal standard of “good cause” and files a motion with the court prior to the time when an arbitrator is “appointed, authorized, and able to act,” the court may enter an order for provisional remedies. The statutory purpose of the “provisional remedies” is to protect a party to an arbitration proceeding to the same degree that the party would have been protected in traditional litigation. See section 682.031(1). On the other hand, if an arbitrator is “appointed, authorized and able to act,” and can provide a timely and adequate provisional remedy, the court cannot interfere with the arbitrator’s proceedings. An arbitrator may tailor remedies to the extent “necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy.” Section 682.031(2). Accordingly, if a party waits until the arbitrator is empowered to preside over the proceeding, the arbitrator will have the ultimate discretion for issuing such orders. However, if an arbitrator cannot timely enter a provisional remedy on an urgent matter or if the arbitrator lacks the authority to provide such a remedy, a party to arbitration may file a motion with the court for a provisional remedy. Section 682.031 provides one of the extremely limited circumstances when a court is authorized to usurp an arbitrator’s authority.

In stark contrast to the high degree of deference that is usually paid to an arbitrator’s ruling, courts review provisional remedy awards de novo before they are confirmed. Awards for provisional relief are only confirmed if the court determines that “the award satisfies the legal standards for awarding a party injunctive or equitable relief.” Section 682.081, Fla. Stat. Traditional arbitration awards are usually confirmed even when the arbitrator makes errors of fact or law. See Schnurmacher, 542 So. 2d at 1329 (“An award of arbitration may not be reversed on the ground that the arbitrator made an error of law”). Furthermore, the award is still subject to being vacated, modified, or corrected under sections 682.13 or 682.14, Fla. Stat. (For more information on vacating, modifying, or correcting arbitration awards, see the Mavrick Law Firm’s earlier article, FLORIDA COURTS HAVE LIMITED AUTHORITY TO MODIFY ARBITRATION AWARDS.) Thus, provisional remedies present a rare opportunity for judicial intervention in, and review of, arbitration proceedings.

In sum, a party to arbitration that is seeking an injunction or some other form of urgent equitable relief can get protection from the courts if the party acts before an arbitrator is authorized to act. If an arbitrator is already authorized to act, the party’s award will be subject to the arbitrator’s discretion. Moreover, if an arbitrator enters an order for a provisional remedy, the non-moving party has the benefit of judicial review using a de novo standard to confirm the award. If a party believes that it is entitled to a provisional remedy and wants traditional legal standards to apply, the party needs to promptly file a motion for relief as provided by sections 682.031 and 682.81 Fla. Stat.

Sections 682.031 and 682.81 became law in 2013, as such, there is very little case law interpreting these statutes. Courts might be reluctant to interfere with arbitration proceedings as courts traditionally viewed arbitration awards as final and unreviewable. See Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327 (Fla. 1989) (“the standard of judicial review of statutory arbitration awards is extremely limited”). If you are currently bound by an arbitration clause and you believe that you need a provisional remedy, or if you simply would like more information regarding arbitration in general, Peter Mavrick is a Fort Lauderdale commercial arbitration lawyer who will assist you.

The Mavrick Law Firm has successfully represented many parties in arbitration proceedings. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.