Business and commercial disputes are the largest single category of matters that come to mediation and arbitration in Florida. They arise from every corner of the commercial economy: contracts that were performed differently than the parties expected, covenants that one side believes were breached and the other believes were not, business relationships that have deteriorated to the point where the parties can no longer work together, commercial transactions that produced allegations of fraud or misrepresentation, and adjacent claims that involve the Uniform Commercial Code, common-law contract doctrine, business torts, and commercial equitable relief.
What follows is what I bring to the mediation or arbitration of these disputes as a neutral with thirty-seven years of active commercial litigation experience in Florida, why active practice matters in this category more than in some others, and how counsel should think about neutral selection for the business and commercial matters they are handling now.
What comes to mediation and arbitration in this category.
Business and commercial disputes cover a range that is broader than the category name suggests. Contract disputes are the largest single subset. They include disputes over the performance of commercial contracts, the interpretation of ambiguous terms, the enforcement of specific provisions, and the damages available for breach. They cover disputes over supply contracts, distribution agreements, licensing arrangements, service agreements, and the wide range of commercial arrangements that produce disputes when the parties' expectations diverge from the actual performance.
Beyond contract disputes, this category includes commercial fraud and misrepresentation claims, disputes over covenants not to compete and non-solicitation provisions, disputes involving commercial guaranties and indemnity obligations, business dissolution and wind-up disputes, and disputes arising from the commercial application of business torts including interference with contract and interference with prospective business relationships. Each of these subcategories has its own substantive law and its own dynamics in the mediation or arbitration room. Each benefits from a neutral who has actually litigated cases in the specific subject area, not just presided over generalist commercial matters.
Why active commercial litigation experience matters here.
Commercial disputes turn on questions that a neutral either understands from active practice or does not. What is the current state of the commercial damages case law in Florida on lost profits versus consequential damages? What does a jury actually do with a claim for punitive damages in a commercial fraud case? What are the enforceable time and geographic scope limits for a non-compete under the current statutory framework, and how are the Florida appellate courts reading them? How does a personal guaranty change the settlement dynamics when the corporate defendant is insolvent? What does a commercial court actually do with a request for specific performance of a commercial contract?
These are not trivia questions. They are the operational questions that shape what a case is worth, how the parties evaluate the risk of continuing, and what settlement structures will hold up. A neutral who has litigated commercial matters over the past several years knows the answers from current practice. A neutral whose litigation career ended a decade ago is working from assumptions that may no longer hold. The distinction is invisible in the credential list and unmistakable in the caucus room.
The same principle applies to arbitration. An arbitrator deciding a commercial dispute is deciding it under substantive commercial law, on evidence developed under commercial discovery rules, and with an award that will be enforced through the commercial confirmation and vacatur framework. An arbitrator with active commercial litigation experience knows how commercial evidence is actually developed, how commercial witnesses actually testify, how commercial experts actually analyze damages, and how the Federal Arbitration Act and the Florida Revised Arbitration Code actually apply to commercial awards. The knowledge base transfers directly from litigation practice to arbitration practice, and the arbitrator who has both is more useful to the parties than the arbitrator who has only one.
What counsel selecting a neutral in this category should ask.
Counsel selecting a mediator or arbitrator for a commercial matter benefit from asking questions that go beyond the standard credential inquiries. Does the neutral currently litigate commercial matters, or is the litigation practice historical? What proportion of the neutral's professional time is spent on commercial matters, as opposed to mediation or arbitration in other subject areas? How recent is the neutral's trial experience in commercial cases? Has the neutral handled the specific type of commercial dispute at issue in the current matter, either as counsel or as a neutral?
The answers are informative even when they are inconvenient. A neutral who has not tried a commercial case in the past ten years is a different neutral from one who tried a commercial case last quarter. A neutral whose commercial experience is exclusively in one narrow subcategory is a different neutral from one with a broader commercial range. A neutral who has handled the specific dispute type before will spot issues in the current matter that a generalist neutral would miss. Counsel who ask these questions before selecting produce better outcomes for their clients than counsel who select on reputation without inquiring into the specifics.
What I bring to business and commercial disputes as a neutral.
My commercial litigation practice has covered the full range of business and commercial disputes for more than thirty-seven years. I have tried commercial cases in Florida state and federal courts. I have handled appellate proceedings arising from commercial matters in all six Florida District Courts of Appeal, the Florida Supreme Court, and the Eleventh Circuit, including an en banc argument that produced a precedent-setting decision on evidence at summary judgment. The litigation practice remains fully active.
The mediation and arbitration practice at Rosenthal Resolutions applies that same commercial litigation background to the neutral role. What I bring to the mediation of a commercial dispute is not just process facilitation but a working understanding of what the case is likely to look like in front of a judge or jury if it does not settle, what the parties actually face in costs and time if they continue, and what settlement structures will produce a durable outcome rather than a short-term compromise that produces the next lawsuit. What I bring to the arbitration of a commercial dispute is not just adjudication of the evidence presented but the substantive commercial law framework that will make the award defensible under the applicable statutory grounds for vacatur.
Counsel handling commercial matters in mediation or arbitration who want to discuss a specific case, or who are considering names for a mediation or arbitration clause under negotiation, are welcome to reach out. Consultations before a matter is set are not billed.
Related writing.
The article on why active litigation experience matters in mediator selection develops the underlying argument in more detail. The article on non-monetary triggers in commercial mediation examines the settlement structures that unlock cases the dollar negotiation alone cannot resolve. The article on arbitrator selection extends the same framework to the arbitration side of the practice.