Counsel who advise commercial clients in 2026 are advising them through a litigation environment that is materially more expensive, slower, and less predictable than it was even five years ago. The numbers are no longer arguable. Partner billing rates at large law firms exceeded $1,122 per hour in 2024, up 7.5 percent year over year, with associate rates at $726 per hour and rising faster. Florida circuit court dockets remain heavy enough that the Florida Supreme Court overhauled the Rules of Civil Procedure effective January 1, 2025, in an explicit effort to reduce backlog. A judge in Miami-Dade County was recently overseeing more than 1,100 cases. The average commercial case in state court takes 23 to 30 months from filing to verdict. The average commercial arbitration takes about seven.
These numbers are not arguments for or against any particular dispute resolution method. They are the operating reality that counsel and their clients face when a dispute arrives. The question is not whether public court litigation is expensive and slow. It is. The question is whether the case at hand justifies the cost and the time, or whether a private resolution path produces a better outcome for the client at lower cost and on a shorter timeline.
I have spent thirty-seven years litigating commercial cases in Florida and now mediate and arbitrate them. What follows is what I see when counsel weigh the options, where the conventional wisdom holds up under scrutiny, and where it does not.
Public court litigation: the actual cost picture.
The headline cost of public litigation is the lawyer's fees. The full cost includes the lawyer's fees, the lost productivity of the principals through depositions and trial preparation, the disruption to the business operation, the cost of experts, the cost of e-discovery, the cost of the lawyer time spent on procedural disputes that resolve nothing on the merits, the cost of waiting two years for trial during which the matter remains an open file on the client's balance sheet, and the cost of an appeal if the trial outcome is adverse.
A commercial dispute that runs for thirty months in Florida state court will produce a legal bill that, in the typical contested matter, exceeds five hundred thousand dollars and frequently exceeds a million. That is before any judgment is collected, which is its own separate cost. The economic literature on litigation has long captured the lost-opportunity cost of the principals' attention spent on the case rather than on the business. A Micronomics study examined the direct losses associated with the additional time to trial in cases litigated in public courts between 2011 and 2015 and quantified the opportunity cost in the millions for any meaningful commercial matter. The numbers have not improved.
Florida's 2025 procedural changes are a partial answer. The amended Rule 1.200 now requires civil cases to be assigned to streamlined, general, or complex tracks within 120 days of filing, with case management orders specifying projected trial periods. The amended Rule 1.460 explicitly disfavors motions to continue trial and requires good cause. The amended Rule 1.440 allows trial to be set before pleadings close. These changes will likely shorten Florida commercial litigation timelines once they are fully implemented, but they will not eliminate the underlying cost dynamic. The lawyer time required to litigate a commercial dispute through trial in Florida state court remains substantial, the partner rates continue to rise, and the public docket remains crowded enough that the streamlined tracks may take longer than projected as judges sort cases through the new framework.
Arbitration: the established private alternative.
Commercial arbitration is the most common private alternative and the one counsel know best. The arbitrator is selected by the parties or by an institutional provider. The hearing is scheduled by the parties and the arbitrator rather than by the court. The procedural rules are tailored to the dispute rather than imposed by general rules of civil procedure designed for the median case. Discovery is more limited than in public court. The hearing is held in private. The award is binding and is generally not subject to substantive appeal.
The advantages of arbitration over public court litigation in commercial cases are real and well documented. The average commercial arbitration takes about seven months from initiation to award, compared to 23 to 30 months in state court. The arbitrator, when properly selected, has direct subject-matter expertise in the kind of dispute presented, which reduces the time and cost spent educating the factfinder. The privacy of the hearing protects confidential business information from public disclosure, which matters in disputes involving trade secrets, financial data, or sensitive commercial relationships. The finality of the award eliminates the appellate path that adds twelve to twenty-four months to public litigation outcomes.
The disadvantages are also real and counsel should be candid about them. Private arbitration is administered by institutional dispute resolution organizations that charge thousands of dollars in administration fees before the arbitrator's fees are even considered. Filing fees scale with the amount in controversy, and high-value commercial matters routinely produce administration costs that are an order of magnitude higher than the equivalent court filing fee. The arbitrator's hourly rate, which the parties pay in addition to their own counsel and to the administering organization, adds a layer of cost that public litigation does not impose because the public pays the judge. Experienced commercial arbitrators are compensated at rates commensurate with senior counsel, and complex matters can accumulate substantial arbitrator fees over the course of the proceeding. The limited discovery, often cited as an advantage, is sometimes a disadvantage in disputes where the merits turn on documents the producing party would rather not produce. The absence of appeal is an advantage when the award favors the client and a disadvantage when it does not.
The fair generalization is that arbitration delivers material time savings and procedural flexibility in exchange for arbitrator costs the public bears in court, with a discovery and finality framework that favors some cases over others. For matters where speed and confidentiality are at a premium, where the dispute is technical enough to benefit from a subject-matter expert as factfinder, and where the parties accept the finality trade-off, arbitration is often the better path. For matters where extensive document discovery is necessary, where the client may want appellate review, or where the simple cost arithmetic favors the courthouse, it is not.
Voluntary trial resolution under Section 44.104: the option counsel often miss.
Florida law provides a third path that most counsel know about but few use. Section 44.104 of the Florida Statutes, enacted in 1999 and codified in Sections 44.104 through 44.106, permits the parties to agree in writing to submit their dispute to a privately selected trial resolution judge. The trial resolution judge must be a member of the Florida Bar with at least five years of practice. The rules of court apply. Evidence is taken under the Florida Evidence Code. The trial resolution judge enters a judgment that has the same legal effect as a judgment entered by the public court, with the same right of appeal on questions of law.
The procedure is not new. It has been on the books for more than twenty-five years. It has nonetheless been used so sparingly that the Florida Bar Journal characterized it, in a recent article, as little-known and apparently not widely used. Two Florida circuit courts, the Sixth and the Thirteenth, have administrative orders specifically establishing jury procedures for voluntary trial resolution, which suggests that the option exists in those jurisdictions but that the volume of cases using it remains low.
This is, in my view, an underused tool. The advantages for commercial litigants are meaningful. The case is heard by a privately selected judge with the time and the subject-matter focus to engage the issues in detail, rather than by a public-docket judge moving through hundreds of cases. The proceeding occurs on the parties' schedule, not the court's. The privacy of the proceeding protects confidential business information from public disclosure. Discovery proceeds under the rules of civil procedure, which means full document discovery, depositions, and the procedural tools commercial counsel rely on, unlike the limited discovery typical of arbitration. The right of appeal on questions of law is preserved, which is the finality protection that arbitration does not offer. The cost of the trial resolution judge is comparable to an arbitrator and substantially less than the lost cost of additional months of litigation in a crowded public court.
The reasons voluntary trial resolution remains underused are partly historical and partly informational. The statute is older than most current practitioners' training. The bar journals and CLE programs have given it less attention than arbitration or mediation. Many counsel default to the public court because that is what they know, without affirmatively considering the private alternative. The statute itself is brief enough that counsel reading it for the first time may not appreciate the procedural sophistication of what it enables.
For the right commercial matter, voluntary trial resolution combines the procedural completeness of public court litigation with the speed, privacy, and flexibility of private resolution. The matter is heard. The evidence is taken. The legal questions are decided. The judgment is appealable. The dispute is resolved on the parties' schedule rather than the court's. The cost arithmetic generally favors voluntary trial resolution over extended public litigation, particularly given current public-court timelines.
The strategic question counsel should be asking.
The choice between public court litigation, arbitration, and voluntary trial resolution is not the choice between right and wrong methods. It is the choice between methods that fit different cases differently. The strategic question is which method serves the client's actual interests in the specific matter at hand, given the speed required, the cost the client can absorb, the confidentiality concerns, the discovery the case requires, the appellate posture the client wants to preserve, and the subject-matter sophistication needed at the factfinding stage.
The default to public court litigation is almost always a default by omission rather than a default by analysis. The lawyer files the case in the court that has jurisdiction because that is what the lawyer has always done. The client signs the engagement letter without being told that private alternatives exist or how they compare. The case moves through the public docket on the public docket's timeline, which in 2026 means many months longer than the client expected and significantly more cost than the client anticipated. The eventual outcome, if there is one, is delivered on the court's schedule rather than the client's.
The counsel who present the private alternatives to the client before filing, who explain the trade-offs of each option in plain terms, and who let the client choose the path that fits the client's needs are doing better work for their clients than the counsel who file by default and then explain the cost overruns later. The choice belongs to the client. The lawyer's job is to make the choice an informed one.
What private resolution actually delivers.
Private dispute resolution, whether through arbitration or voluntary trial resolution, delivers three things that public court litigation in 2026 cannot reliably deliver. The first is a defined timeline. The parties know when the matter will be heard, when the decision will issue, and when the dispute will end. The second is a factfinder with the time and the subject-matter focus to engage the dispute in detail. The third is privacy, which matters more in commercial disputes than counsel sometimes acknowledge because the public docket is a marketing problem for both sides whenever the dispute is anything other than routine.
The private path costs the parties more in arbitrator or trial-resolution-judge fees than the public path costs them in judge fees, because the public judge is paid by the taxpayer and the private one is paid by the parties. The private path saves them substantially more in lawyer fees, lost productivity, and time-value than it costs in factfinder fees. The arithmetic is not close. For any meaningful commercial dispute, the math favors private resolution over extended public litigation in the current environment.
Counsel and clients who weigh these options carefully, and who select the path that fits the matter, produce better outcomes than counsel and clients who default to the courthouse. That is the candid observation a working litigator who now serves as a neutral can make from inside the system. The choice is available. The information is on the table. The decision belongs to the client. Counsel who frame the decision honestly serve their clients well.