Who Decides? The Court, the Arbitrator, and the Line Between Them

A recent Florida appellate decision in Harlow v. Tier 1 Pest Solutions, LLC, offers a useful reminder about one of the most important questions in arbitration law: who decides what?

That question sounds simple. In practice, it often is not.

When a dispute involves an arbitration agreement, the parties may disagree about much more than the merits of the underlying case. They may disagree about whether the agreement applies. They may disagree about whether arbitration has been properly initiated. They may disagree about whether a required step, such as negotiation or mediation, had to occur first. They may disagree about waiver, timing, procedure, emergency relief, or whether the case belongs in court at all.

Those disagreements raise a recurring issue: which questions are for the court, and which questions are for the arbitrator?

The distinction matters. Courts have an important gatekeeping role. But once that role has been fulfilled, courts must be careful not to decide procedural issues that the parties’ agreement and the governing arbitration statute leave to the arbitrator.

The Florida appellate decision illustrates that boundary.

The Dispute Resolution Clause

The case involved a dispute among members of a limited liability company. One member owned a 51% interest in the company, while two others owned the remaining 49%. Their written operating agreement contained a dispute resolution provision.

The agreement required unresolved disputes to be handled through mediation. If mediation did not resolve the dispute, the dispute would then be settled through arbitration under the Commercial Arbitration Rules of the American Arbitration Association.

After a dispute arose, the majority member demanded mediation. The other members did not respond. He then started an arbitration. While that arbitration activity was unfolding, the company filed a lawsuit against him, asserting claims that included breach of fiduciary duty, conversion, constructive fraud, and injunctive relief.

The trial court granted a temporary injunction in favor of the company. The majority member moved to dissolve the injunction and also moved to compel arbitration. He argued that the operating agreement required arbitration and that any issue about mediation as a condition precedent to arbitration was for the arbitrator, not the court.

The trial court granted arbitration in part, but it also ordered the parties to attend mediation before proceeding to arbitration. That was the problem.

The appellate court held that the trial court was correct to recognize the arbitration agreement, but it crossed the line when it decided that mediation had to occur before arbitration could proceed. The question whether mediation was a condition precedent to arbitration, and whether that condition had been satisfied, belonged to the arbitrator.

The Court’s Role

Courts do not disappear simply because a contract contains an arbitration clause. Arbitration is a matter of agreement, and courts play a critical role in determining whether the parties actually agreed to arbitrate.

At the front end, the court typically decides two core issues.

First, is there an enforceable agreement to arbitrate?

Second, is the controversy subject to that agreement?

Those are gateway questions. A court should not send parties to arbitration unless there is a valid arbitration agreement and the dispute falls within it.

That is the court’s job.

If the court determines that no enforceable arbitration agreement exists, arbitration cannot be compelled. If the court determines that the dispute is outside the scope of the arbitration agreement, the case remains in court. But if the court determines that an enforceable arbitration agreement exists and that the controversy is subject to that agreement, the court’s job usually becomes much narrower.

At that point, the court should order arbitration and allow the arbitrator to address the issues committed to the arbitral forum.

The Arbitrator’s Role

The arbitrator’s role is not limited to deciding who ultimately wins or loses. Arbitrators also decide many procedural and case-management issues that arise in the arbitration process.

That includes questions about whether a procedural prerequisite to arbitration has been satisfied, unless the governing law or agreement provides otherwise. In the Florida case, the disputed prerequisite was mediation.

The operating agreement said disputes would be mediated first and arbitrated if mediation did not resolve the dispute. One side argued that mediation had not occurred and therefore arbitration should not proceed. The other side argued that the issue was for the arbitrator.

The appellate court agreed with the latter view.

Under the Florida arbitration statute discussed by the court, an arbitrator decides whether a condition precedent to arbitrability has been fulfilled. The court also explained that the question whether something is a condition precedent is logically bound up with whether the condition has been fulfilled. In other words, the arbitrator cannot decide whether a condition has been satisfied without first understanding what the condition is.

That makes practical sense. If the parties have agreed to arbitrate, and the dispute belongs in arbitration, procedural objections about steps leading into arbitration are usually best decided by the arbitrator.

Why the Distinction Matters

The distinction between the court’s role and the arbitrator’s role is not just technical. It affects strategy, timing, cost, and control of the dispute.

If courts decide too much before arbitration begins, arbitration can become delayed by satellite litigation. Parties can use procedural objections to slow the process, increase expense, and relitigate issues that the arbitrator is equipped to decide.

On the other hand, if courts decide too little, parties may be forced into arbitration without having actually agreed to arbitrate. That would undermine the contractual foundation of arbitration.

The balance is important.

Courts decide whether the arbitration agreement exists and whether the dispute is covered. Arbitrators decide many issues about how the arbitration proceeds, including procedural prerequisites and conditions precedent when the law assigns those issues to the arbitrator.

That division of responsibility preserves both the court’s gatekeeping function and the efficiency of the arbitral process.

Mediation Before Arbitration

Many commercial agreements require negotiation or mediation before arbitration. These clauses can be useful. They encourage parties to attempt resolution before committing to a more formal adversarial process.

But they can also create disputes of their own.

Was mediation required? Was it requested? Was it refused? Was the requesting party required to do more? Did one party’s nonresponse excuse further efforts? Did the clause require completion of mediation, or only an attempt to mediate? Did the parties waive the prerequisite through their conduct?

Those are common questions. The Florida decision reminds counsel that those questions may belong to the arbitrator, not the court, once the court determines that the agreement to arbitrate is enforceable and the controversy falls within it.

That does not mean mediation language is unimportant. It means the language should be drafted carefully, and counsel should understand who will decide disputes over compliance with that language.

If parties want mediation to be a meaningful step before arbitration, the agreement should say so clearly. It should address how mediation is initiated, how the mediator is selected, what happens if a party refuses to participate, how long the parties must wait before arbitration may be filed, and whether emergency arbitral relief remains available.

Ambiguity can create unnecessary disputes. Clarity reduces friction.

Emergency and Injunctive Relief

The case also involved a temporary injunction. The appellate court affirmed the portion of the trial court’s order denying the motion to dissolve that injunction.

That part of the decision is a reminder that arbitration agreements do not always eliminate the court’s role in provisional relief. Depending on the agreement, the governing rules, and applicable law, courts may still be asked to address temporary injunctions, emergency relief, preservation of assets, confidentiality, or other interim measures.

This does not mean the court decides the merits of the arbitrable dispute. It means the court may have a limited role in preserving the status quo or addressing relief that is ancillary to the arbitration process.

That distinction is important. A court’s ability to address provisional relief does not necessarily give it authority to decide procedural issues that belong to the arbitrator.

Practical Lessons for Counsel

For lawyers drafting dispute resolution provisions, the lesson is straightforward: say what you mean.

If mediation must occur before arbitration, define what that means. Does the mediation have to be completed, or merely requested? What happens if the other side refuses to respond? Is there a deadline? Can a party seek emergency arbitration before mediation? Can a party seek temporary injunctive relief in court without waiving arbitration? Who decides disputes about compliance with the pre-arbitration process?

Those questions should not be left to implication if they matter to the parties.

For lawyers litigating arbitrability, the lesson is equally important. Not every objection to arbitration should be presented as a reason for the court to stop the arbitration. Once the court determines that an enforceable arbitration agreement exists and the dispute is covered by it, many remaining questions may be for the arbitrator.

That includes questions about whether mediation was a condition precedent and whether that condition was fulfilled.

Counsel should be careful to distinguish between true gateway issues for the court and procedural arbitrability issues for the arbitrator.

Practical Lessons for Clients

For clients, the decision highlights the importance of understanding dispute resolution language before a dispute arises.

A mediation-before-arbitration clause may sound simple. But when conflict develops, every word can matter. A party may believe it has the right to proceed directly to arbitration because the other side refused to mediate. The other side may argue arbitration is premature because mediation did not occur. The question then becomes not only who is right, but who decides who is right.

That can affect the cost, speed, and direction of the dispute.

Clients entering operating agreements, employment agreements, service contracts, shareholder agreements, and commercial contracts should treat dispute resolution provisions as business terms, not boilerplate. Those provisions determine the forum, procedure, and path for resolving future conflict.

The Larger Point

The Florida appellate decision is a useful example of the division of labor between courts and arbitrators.

The court decides whether the parties agreed to arbitrate and whether the dispute is covered by that agreement. If the answer is yes, the court generally should compel arbitration. The arbitrator then decides issues assigned to the arbitral forum, including many procedural questions and conditions precedent to arbitration.

That division protects the integrity of the arbitration agreement. It also prevents the court from becoming entangled in issues that the parties agreed to submit to arbitration.

For attorneys and clients, the practical takeaway is clear: the question is not only whether a dispute must be arbitrated. The question is also who decides the disputes about arbitration itself. In demanding cases, that distinction can shape the entire path to resolution.

Nationwide ADR helps parties and counsel navigate arbitration, mediation, and other dispute-resolution processes with clarity, structure, and practical judgment.

Unlocking Solutions for Demanding Cases®

Trusted. Balanced. Resolution Driven®