FLORIDA BUSINESS LITIGATION: FLORIDA’S REVISED ARBITRATION CODE ALLOWS PARTIES TO SEEK PROVISIONAL REMEDIES EVEN WHEN THEY CONTRACTUALLY AGREED TO ARBITRATE

The Florida Arbitration Code provides businesses with flexibility in resolving their conflicts through arbitration. Arbitration is an immensely popular method of conflict resolution for Florida business litigation and employment litigation. Arbitration can generally help resolve disputes more quickly than litigation. However, parties to arbitration sometimes need court intervention via “provisional remedies,” i.e., a court ruling providing interim relief to protect one of the parties in a conflict before the entire dispute can be decided by the arbitrator. Florida Statutes section 682.031(1) specifically contemplates provisional remedies before an arbitrator is appointed. The purpose of these provisional remedies is to allow judicial intervention when there is a real emergency that cannot be easily addressed in arbitration due to delays sometimes inherent in the arbitration process. For example, the arbitration process requires consent of all parties to proceed, and there are sometimes delays in getting the process started especially when one of the parties is uncooperative. An emergency request for a temporary injunction, by its very nature, is exactly the type of matter that § 682.031(1) was designed to protect. Peter Mavrick is a Miami non-compete attorney and employment attorney who has extensive experience representing the interests of businesses and business owners.

The authority for a court’s ability to adjudicate a Motion for an Emergency for Temporary Injunction is found in § 682.031, Florida Statutes, which provides that:

(1) Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

(2) After an arbitrator is appointed and is authorized and able to act:

(a) The arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action.

(b) A party to an arbitration proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.

(3) A party does not waive a right of arbitration by making a motion under this section.

(4) If an arbitrator awards a provisional remedy for injunctive or equitable relief, the arbitrator shall state in the award the factual findings and legal basis for the award.

(5) A party may seek to confirm or vacate a provisional remedy award for injunctive or equitable relief under s. 682.081.

This is particularly important to Florida employers that have non-compete agreements with their employees or buyers of businesses who need to enforce a non-compete covenant barring the seller from poaching customers or otherwise competing in a geographic area. Such businesses sometimes need to get emergency or temporary injunctions to enforce their non-compete agreements before an arbitrator is chosen and able to decide the entire dispute. See Fla. Stat. § 542.335, et seq.

Judges have the discretion to deny hearing provisional remedies when, for example, there is no real emergency. In one recent federal court case, K12 Florida LLC v. S. Florida Virtual Charter Sch. Bd., Inc., 18-61709-CIV, 2019 WL 568878, at 1 (Jan. 10, 2019), report and recommendation adopted sub nom. K12 Florida LLC v. S. Florida Virtual Sch. Charter Sch. Bd., Inc., 18-61709-CIV, 2019 WL 1115877 (S.D. Fla. Jan. 30, 2019), the Judge denied provisional remedies because the situation was not urgent. In that case, the plaintiff was seeking a prejudgment writ of garnishment pursuant to § 682.031(1) Florida statutes. The court denied the plaintiff’s request, explaining that the circumstances were not so dire and urgent as to justify the court determining whether a writ of garnishment was appropriate rather than the arbitrator. Particularly, the plaintiff had taken too long to seek the relief, did not explain why a writ of garnishment was an emergency, and took action to delay the arbitration.

Florida businesses involved in disputes requiring arbitration should seek provisional remedies only when needed and do so with diligence and promptness, or risk denial of needed relief. Peter Mavrick is a Miami employment lawyer and non-compete lawyer defending businesses and their owners. This article does not serve as a substitute for legal advice tailored to a particular situation.