insights: private judging
Florida law expressly authorizes “private judging,” formally known as Voluntary Trial Resolution (VTR), under § 44.104, Florida Statutes. This statute permits parties in most civil disputes to stipulate to the appointment of a privately compensated “trial resolution judge” who conducts proceedings under the Florida Rules of Civil Procedure and Evidence and renders a binding decision enforceable by the circuit court.
At its core, VTR functions as a full substitute for traditional court adjudication, not merely a form of ADR. The statute allows parties to submit any civil action to a trial resolution judge, enabling resolution of discrete issues (e.g., discovery disputes) or the entire case through a bench or jury trial.
STATUTORY FRAMEWORK AND PROCEDURE
Section 44.104 establishes the following key procedural components.
1. Consent and Initiation: VTR is entirely voluntary. All parties must agree to submit their dispute to a trial resolution judge. Once a joint request is filed, the court generally must honor the parties’ election.
2. Appointment of the Trial Resolution Judge: The trial resolution judge must be a member in good standing of The Florida Bar for at least five years. The parties may agree on a judge; if they cannot, the court will appoint one. The judge is compensated by the parties pursuant to agreement or court approval.
3. Scope of Authority: The trial resolution judge exercises powers similar to a circuit judge, including:a. Administering oaths and conducting hearings,b. Issuing subpoenas and compelling discovery,c. Resolving motions and evidentiary issues, andd. Conducting trial and rendering a final decision.
The statute expressly provides that the Florida Evidence Code applies and that proceedings follow standard procedural rules, distinguishing VTR from arbitration.
4. Nature of the Proceeding: VTR proceedings are formal and trial-like (either bench or jury trial). Unlike mediation, they culminate in a binding adjudication. Unlike arbitration, they preserve core attributes of judicial process, including application of procedural rules and availability of meaningful appellate review.
5. Decision and Enforcement: The trial resolution judge may “determine any question and render a final decision.” A party may petition the circuit court for entry of final judgment on that decision. Once entered, the judgment is enforceable like any other court judgment.
6. Appellate Review: Appeal rights are preserved but limited. Appeal may be taken to an intermediate appellate court. Factual findings are generally not subject to appellate review. Conclusions of law are subject to de novo review. Further review is not permitted unless the case involves constitutional issues.
7. Limitations on Use: The statute excludes certain matters, including:a. Constitutional issues,b. Child custody and visitation, and c. Certain third-party rights. STRATEGIC ADVANTAGES OF VOLUNTARY TRIAL RESOLUTION
Despite its statutory clarity and longevity, VTR remains underutilized in Florida practice. That underutilization is difficult to justify in complex or contentious litigation, where the traditional court system often struggles with congestion, scheduling delays, and limited judicial bandwidth.
1. Immediate and Continuous Judicial Access: VTR allows parties to retain a decision-maker who is available on demand. Motions can be heard promptly, discovery disputes resolved in real time, and case management tailored to the needs of the litigation rather than the court’s docket.
2. Expertise in Decision-Making: Parties may select a trial resolution judge with subject-matter expertise—an advantage rarely available in the random assignment system of public courts. This is particularly valuable in complex commercial, business, or technical disputes.
3. Scheduling Control and Trial Certainty: Cases can be set for trial on a date certain without the risk of last-minute continuances due to docket congestion. This predictability materially enhances case valuation and settlement dynamics.
4. Preservation of Procedural Safeguards: Unlike arbitration, VTR preserves:a. Application of procedural and evidentiary rules,b. A formal record, andc. Limited appellate review
This hybrid structure offers the efficiency of ADR with the rigor of litigation.
5. Issue-Specific Deployment: Importantly, VTR need not be an all-or-nothing proposition. Parties may deploy it selectively—for example, to resolve discovery disputes or dispositive motions—while leaving other aspects of the case in the traditional court system.
WHEN PRIVATE JUDGING IS MOST EFFECTIVE
VTR is particularly well-suited for:a. High-conflict cases requiring frequent judicial intervention,b. Matters stalled by discovery disputes,c. Trial-ready cases awaiting distant trial dates, andd. Situations where parties desire confidentiality, efficiency, or specialized expertise.
Conversely, it may be less appropriate where public policy concerns predominate or where cost sensitivity outweighs the efficiency gains.
CALL FOR GREATER UTILIZATION
From a practitioner’s perspective, § 44.104 offers a powerful but underutilized tool for restoring control to litigants and counsel. In an era of increasingly congested dockets, the statute provides a mechanism to reclaim the pace, structure, and focus of litigation. The reluctance to use VTR often stems from unfamiliarity rather than substantive limitation and cost. Yet the statutory framework is robust: it preserves due process, ensures enforceability, and maintains meaningful appellate oversight. At the same time, it eliminates many of the inefficiencies inherent in traditional court proceedings. For contentious cases—particularly those requiring sustained judicial engagement—private judging should not be viewed as an alternative of last resort. It should be considered a primary strategic option at the outset of litigation planning. CONCLUSION Ultimately, voluntary trial resolution is not merely an alternative—it is a deliberate choice to elevate the quality, efficiency, and predictability of adjudication in civil litigation. Lawyers who thoughtfully advise their clients about this option position themselves not only as advocates, but as strategic architects of the dispute resolution process itself. In a system where delay and uncertainty too often shape outcomes, VTR offers a rare opportunity to restore control, focus, and momentum to a case. The question is no longer whether the tool exists—it is whether practitioners will use it with the sophistication and intentionality that modern litigation demands.
At its core, VTR functions as a full substitute for traditional court adjudication, not merely a form of ADR. The statute allows parties to submit any civil action to a trial resolution judge, enabling resolution of discrete issues (e.g., discovery disputes) or the entire case through a bench or jury trial.
STATUTORY FRAMEWORK AND PROCEDURE
Section 44.104 establishes the following key procedural components.
1. Consent and Initiation: VTR is entirely voluntary. All parties must agree to submit their dispute to a trial resolution judge. Once a joint request is filed, the court generally must honor the parties’ election.
2. Appointment of the Trial Resolution Judge: The trial resolution judge must be a member in good standing of The Florida Bar for at least five years. The parties may agree on a judge; if they cannot, the court will appoint one. The judge is compensated by the parties pursuant to agreement or court approval.
3. Scope of Authority: The trial resolution judge exercises powers similar to a circuit judge, including:a. Administering oaths and conducting hearings,b. Issuing subpoenas and compelling discovery,c. Resolving motions and evidentiary issues, andd. Conducting trial and rendering a final decision.
The statute expressly provides that the Florida Evidence Code applies and that proceedings follow standard procedural rules, distinguishing VTR from arbitration.
4. Nature of the Proceeding: VTR proceedings are formal and trial-like (either bench or jury trial). Unlike mediation, they culminate in a binding adjudication. Unlike arbitration, they preserve core attributes of judicial process, including application of procedural rules and availability of meaningful appellate review.
5. Decision and Enforcement: The trial resolution judge may “determine any question and render a final decision.” A party may petition the circuit court for entry of final judgment on that decision. Once entered, the judgment is enforceable like any other court judgment.
6. Appellate Review: Appeal rights are preserved but limited. Appeal may be taken to an intermediate appellate court. Factual findings are generally not subject to appellate review. Conclusions of law are subject to de novo review. Further review is not permitted unless the case involves constitutional issues.
7. Limitations on Use: The statute excludes certain matters, including:a. Constitutional issues,b. Child custody and visitation, and c. Certain third-party rights. STRATEGIC ADVANTAGES OF VOLUNTARY TRIAL RESOLUTION
Despite its statutory clarity and longevity, VTR remains underutilized in Florida practice. That underutilization is difficult to justify in complex or contentious litigation, where the traditional court system often struggles with congestion, scheduling delays, and limited judicial bandwidth.
1. Immediate and Continuous Judicial Access: VTR allows parties to retain a decision-maker who is available on demand. Motions can be heard promptly, discovery disputes resolved in real time, and case management tailored to the needs of the litigation rather than the court’s docket.
2. Expertise in Decision-Making: Parties may select a trial resolution judge with subject-matter expertise—an advantage rarely available in the random assignment system of public courts. This is particularly valuable in complex commercial, business, or technical disputes.
3. Scheduling Control and Trial Certainty: Cases can be set for trial on a date certain without the risk of last-minute continuances due to docket congestion. This predictability materially enhances case valuation and settlement dynamics.
4. Preservation of Procedural Safeguards: Unlike arbitration, VTR preserves:a. Application of procedural and evidentiary rules,b. A formal record, andc. Limited appellate review
This hybrid structure offers the efficiency of ADR with the rigor of litigation.
5. Issue-Specific Deployment: Importantly, VTR need not be an all-or-nothing proposition. Parties may deploy it selectively—for example, to resolve discovery disputes or dispositive motions—while leaving other aspects of the case in the traditional court system.
WHEN PRIVATE JUDGING IS MOST EFFECTIVE
VTR is particularly well-suited for:a. High-conflict cases requiring frequent judicial intervention,b. Matters stalled by discovery disputes,c. Trial-ready cases awaiting distant trial dates, andd. Situations where parties desire confidentiality, efficiency, or specialized expertise.
Conversely, it may be less appropriate where public policy concerns predominate or where cost sensitivity outweighs the efficiency gains.
CALL FOR GREATER UTILIZATION
From a practitioner’s perspective, § 44.104 offers a powerful but underutilized tool for restoring control to litigants and counsel. In an era of increasingly congested dockets, the statute provides a mechanism to reclaim the pace, structure, and focus of litigation. The reluctance to use VTR often stems from unfamiliarity rather than substantive limitation and cost. Yet the statutory framework is robust: it preserves due process, ensures enforceability, and maintains meaningful appellate oversight. At the same time, it eliminates many of the inefficiencies inherent in traditional court proceedings. For contentious cases—particularly those requiring sustained judicial engagement—private judging should not be viewed as an alternative of last resort. It should be considered a primary strategic option at the outset of litigation planning. CONCLUSION Ultimately, voluntary trial resolution is not merely an alternative—it is a deliberate choice to elevate the quality, efficiency, and predictability of adjudication in civil litigation. Lawyers who thoughtfully advise their clients about this option position themselves not only as advocates, but as strategic architects of the dispute resolution process itself. In a system where delay and uncertainty too often shape outcomes, VTR offers a rare opportunity to restore control, focus, and momentum to a case. The question is no longer whether the tool exists—it is whether practitioners will use it with the sophistication and intentionality that modern litigation demands.