Is Your AIA Contract Subject to Arbitration in Florida?

Short answer: what decides whether arbitration is required

The form’s name alone does not decide it. Florida law treats a written agreement to arbitrate as Fla. Stat. § 682.02 valid, enforceable and irrevocable, unless a ground exists to revoke any contract. So the real question is what your signed paperwork says.

AIA projects usually involve more than one document. The owner-contractor agreement sets the deal. The A201 general conditions add procedures for claims and disputes. Supplemental conditions and edits can change those terms. The dispute clause may require mediation first, arbitration, or a court case. Read the signed set together before you take any step. A contractor who reads only the general conditions can miss an edit made in the agreement itself, so the signed set is the starting point.

How AIA general conditions handle disputes

The dispute section of the AIA A201 general conditions generally moves a problem through steps. A party makes a written claim. A designated decision-maker may issue a first decision. The parties may then try mediation. If the contract selects binding dispute resolution, that step comes last. The exact steps depend on the edition the parties signed and any changes made to it.

If the parties did not select arbitration, the dispute goes to the forum the contract names, which is often a court. Don’t assume the standard text applies unchanged. Owners and contractors often edit these provisions in the signed agreement or in supplemental conditions. A single changed word can change the path. Pull every edited page and compare it with the standard form before you rely on the clause.

Reading the contract: dispute clause, change orders, payment terms and retainage

Start with the dispute resolution clause itself. Then read the notice and claim rules around it. Look for any mediation step that must happen before arbitration. Look for deadlines to send written notice of a claim. Check how change orders are requested, priced and approved. A disputed change order is often the first step in a larger fight.

Payment terms and retainage also matter. Retainage is the part of each payment held back until the work is finished or closed out. The payment schedule and retainage rules decide when money is due and what paperwork must back up a claim. A missed pay application or a late notice can weaken a later argument.

Finally, check the order of precedence among the contract documents. If two documents conflict, the order can decide which provision controls. Ask which document governs before you rely on any one clause. Keep the signed set, change requests and daily logs together in one file.

What an arbitration clause does to a construction contract dispute

A valid written arbitration clause generally sends the covered claim to an arbitrator instead of a judge and jury. The Revised Florida Arbitration Code governs an agreement to arbitrate made on or after July 1, 2013, and beginning July 1, 2016, an agreement to arbitrate is subject to the code, under Fla. Stat. § 682.013. A contract signed after that date falls under the code.

A party that wants arbitration can ask a Florida court to order it. If the other side opposes, the court decides the issue in a summary way. It must order arbitration unless it finds there is no enforceable agreement, according to Fla. Stat. § 682.03. The court also cannot refuse arbitration just because the claim may lack merit.

Federal law may also apply. Under 9 U.S.C. § 2, a written arbitration provision in a contract involving commerce is valid, irrevocable and enforceable, save upon grounds that exist at law or in equity to revoke any contract. Under Fla. Stat. § 682.02, the court decides whether an arbitration agreement exists. An arbitrator decides whether a condition to arbitration has been fulfilled.

How arbitration works in a construction dispute

The usual sequence starts with a written demand for arbitration. Next comes selecting arbitrators, under the contract or the rules of the organization it names. Then the parties exchange documents, hold a hearing and receive a written award. Each step has its own timing, so the contract and the applicable rules both matter.

Many construction contracts name the American Arbitration Association. Its AAA construction rules apply when the parties’ contract provides for AAA arbitration. Those procedures cover filing, arbitrator selection, hearings and awards.

An award is usually final, and a court reviews it on narrow grounds. Under Fla. Stat. § 682.13, on motion of a party to the arbitration, a court must vacate an award procured by corruption, fraud or other undue means, among other grounds. A motion to vacate generally must be filed within 90 days after the movant receives notice of the award, unless the movant alleges the award was procured by corruption, fraud or other undue means, in which case it must be filed within 90 days after the ground is known or would have been known with reasonable care. Preparation before the hearing matters, because the review is narrow.

Can a party skip arbitration and go straight to court?

If a valid arbitration clause covers the claim, a party generally cannot simply file suit and proceed. The other side can move to compel arbitration. Under Fla. Stat. § 682.03, the court must stay the judicial case on the claim subject to arbitration, on just terms, until it decides the motion.

Federal court follows a similar rule. Under 9 U.S.C. § 3, the court stays the trial on an arbitrable issue, but only if the party asking for the stay is not in default in proceeding with the arbitration. Timing matters on both paths.

Florida also has a separate mediation rule. Under Fla. Stat. § 44.102, a court must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless an listed exception applies. Exceptions apply, including when the parties have agreed to binding arbitration. A case without a binding arbitration agreement may therefore face court-ordered mediation after filing.

Disputes arbitration generally cannot resolve, or that may stay in court

A clause reaches only the disputes it covers. A claim outside its wording may proceed in court. Who is bound by the clause is a separate question. A subcontractor, surety or lender may not have signed the owner’s arbitration clause, so the answer depends on the paper each party signed.

Unjust enrichment is one claim to watch. Florida’s Third District Court of Appeal, in Williams v. Johnson, explained that where an express contract covers the same subject matter, claims arising out of that contractual relationship will not support an unjust enrichment claim. A party that tries to recover outside the contract may find the contract controls.

Some disputes may call for quick court relief before an arbitrator is in place. Whether that route is available depends on the clause wording and the relief requested. Sort each claim by the clause that governs it, so you know which path fits.

Does one side usually win in arbitration?

No general rule says one side usually wins. The outcome turns on the contract language, the project records and the evidence each side presents. Two construction disputes can look alike and still turn out differently, because the paperwork differs.

Documentation often shapes what a decision-maker can review. Daily logs, written change order requests, notices, schedules and payment records show what was agreed and when. A claim with a gap in its paper trail can be harder to prove. That is a general point about evidence, not a prediction about any case.

This page cannot predict how any arbitrator or court would rule on a particular contract. The result depends on the documents and the proof in each dispute.

How construction disputes move through Florida courts in Hillsborough County and Tampa Bay

When a contract does not require arbitration, a construction suit is filed in a Florida court. Venue is governed by Fla. Stat. § 47.011. Actions are brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. That section does not apply to actions against nonresidents. For a project in Hillsborough County, a claim may fit a court there, depending on those facts.

Court and arbitration differ in practical ways. A court case follows state court rules and pretrial steps, and it may involve a jury. An arbitration usually runs on the contract’s timetable, with an arbitrator who decides the case. A court case is generally a public record.

Construction disputes on projects in Brandon, Riverview, Plant City and Temple Terrace raise the same questions. The contract analysis does not change with the city. What changes is which forum the clause and the venue rules point to.

Steps to take before you choose a path

Collect the complete signed contract set, change orders, notices, pay applications and correspondence in one place. Missing pages are a common problem. Confirm you have every edit and every exhibit.

Next, identify any mediation step, notice deadline or claim procedure. Put each date on a calendar. A missed step can weaken a later argument, even when the underlying claim is sound.

Avoid taking inconsistent positions in writing. For example, filing suit on a claim the contract sends to arbitration can start a fight over the forum before the merits are reached. Review the clause before you send a demand or file a case. If an award arrives, note the date you received it. The 90-day window under Fla. Stat. § 682.13 may apply.

Talk with Ayala Law PA about your AIA contract

Ayala Law PA focuses on business litigation, including construction litigation, contract disputes and shareholder disputes. This page covers construction disputes in Hillsborough County and the Tampa Bay area. Eduardo A. Maura is the responsible lawyer for this page. The firm’s only office is at 1646 W Snow Ave, Tampa, Florida.

Frequently asked questions