Business torts sit in a category of commercial dispute that many neutrals underappreciate. The claims arise from conduct rather than from contract, they carry substantive elements that require careful proof, and they often produce settlement dynamics that are meaningfully different from the settlement dynamics of the underlying contractual relationship. A neutral handling a business tort claim in mediation or arbitration needs to understand not just the substantive tort law but also how the tort claim interacts with related contract, statutory, and equitable claims that typically travel with it.
What follows is what I bring to the mediation or arbitration of business tort claims as a neutral with active commercial litigation experience in Florida, and how the tort context changes what counsel should look for in neutral selection.
What business tort disputes actually involve.
Business torts in Florida commercial practice principally include tortious interference with contract, tortious interference with prospective business relationships, unfair competition, misappropriation of trade secrets under the Florida Uniform Trade Secrets Act, defamation and commercial disparagement in a business context, breach of fiduciary duty by officers, directors, and partners, and civil conspiracy claims that overlay the substantive torts. Each of these claims has its own substantive elements, its own damages framework, and its own dynamics when the parties come to mediation or arbitration.
The claims frequently travel together and travel with contract claims arising from the same relationship. A former employee accused of taking clients to a competitor often faces claims for tortious interference with contract, misappropriation of trade secrets, breach of fiduciary duty, and breach of the underlying employment agreement, all in the same proceeding. A mediator or arbitrator handling that matter needs to hold the full set of claims in mind at once because the settlement value depends on how the claims interact, not on the value of any single claim in isolation.
Why active litigation experience matters in business tort matters.
Business tort claims turn on questions that a neutral either understands from practice or does not. What is the current Florida standard for tortious interference where the alleged interferer had a legitimate competitive interest? How does the Florida Uniform Trade Secrets Act preempt related common-law claims, and where are the appellate courts drawing the preemption line? What does the Florida law of punitive damages actually require for a business tort claim, and how are trial courts applying the statutory caps? How do the elements of civil conspiracy interact with the underlying tort in a case where the primary defendant is judgment-proof?
These are working questions in current practice. A neutral who has litigated business tort claims in Florida over the past several years knows the answers from firsthand experience. A neutral whose exposure to business torts is limited to occasional cases from a decade ago is working from a static understanding of an area of law that has continued to develop. The Florida appellate courts have refined tortious interference doctrine substantially over the past decade, the trade secrets landscape has changed with the federal Defend Trade Secrets Act, and the punitive damages framework has been the subject of continued appellate attention. A neutral without current exposure to these developments may miss issues that shape settlement value or arbitration outcome.
What counsel selecting a neutral in this category should ask.
Counsel selecting a mediator or arbitrator for a business tort matter benefit from asking directly about the neutral's experience with the specific tort at issue. Has the neutral handled tortious interference matters as counsel or as a neutral? What was the outcome, and what did the neutral learn about how these claims actually settle? Does the neutral understand the interaction of the primary tort claim with the contract claims, statutory claims, and equitable claims that typically travel with it?
The answers matter because business tort claims produce settlement patterns that are distinct from contract claims. Parties in tort cases often want vindication as well as compensation, and the non-monetary components of settlement are frequently more important than they are in pure contract cases. Reputation, restrictive covenants going forward, and admissions of conduct can carry as much weight as the dollar figure. A neutral who understands this dynamic in tort matters can structure settlements that resolve the case in ways that a neutral who treats the case as if it were a contract dispute cannot.
What I bring to business tort matters as a neutral.
My commercial litigation practice has included business tort claims for more than thirty-seven years as counsel for both plaintiffs and defendants. I have litigated tortious interference, trade secrets, unfair competition, breach of fiduciary duty, and civil conspiracy claims through trial and, in a number of matters, through appeal. The litigation practice remains fully active.
What I bring to the mediation of a business tort matter is a working understanding of how these claims actually develop and resolve, an appreciation for the non-monetary components that often unlock settlement in tort cases, and a current understanding of the applicable Florida substantive law. What I bring to the arbitration of a business tort matter is the same substantive framework applied to the adjudicative role, with attention to how the tort claims interact with related contract and statutory claims that typically appear in the same proceeding.
Counsel handling business tort matters in mediation or arbitration who want to discuss a specific case, or who are considering names for the neutral in a matter that has not yet been set, are welcome to reach out. Consultations before a matter is set are not billed.