August 15, 2020
Print This PagePrint This Page

  *
Session:
Bill #:
Session:
Chamber: View Search Tips
Search Term:
Year: View Search Tips
Search Term:
Senate Bill 1970

Senate Bill sb1970

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 1970

    By Senator Campbell





    32-982C-04

  1                      A bill to be entitled

  2         An act relating to confidentiality and

  3         privilege against disclosure of mediation

  4         proceedings; creating s. 44.401, F.S.;

  5         providing a short title; creating s. 44.402,

  6         F.S.; providing that the act applies to

  7         specified mediations; creating s. 44.403, F.S.;

  8         providing definitions relating to mediation

  9         proceedings; creating s. 44.404, F.S.;

10         providing for durational time limits for

11         mediations; creating s. 44.405, F.S.; providing

12         that all mediation communications are

13         confidential unless otherwise provided in the

14         act; providing that a mediation participant has

15         the privilege to refuse to testify concerning

16         communications made during a mediation;

17         describing the circumstances when mediations

18         begin and end; providing exceptions to

19         confidentiality and privilege provided for

20         mediation communications; creating s. 44.406,

21         F.S.; providing civil remedies for disclosing

22         mediation communications; providing for

23         attorney's fees and costs; amending s. 44.107,

24         F.S.; providing immunity from liability for

25         trainees in the Supreme Court's mentorship

26         program; conferring immunity from liability on

27         persons serving as mediators in specified

28         circumstances; providing an effective date.

29  

30  Be It Enacted by the Legislature of the State of Florida:

31  

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1         Section 1.  Section 44.401, Florida Statutes, is

 2  created to read:

 3         44.401  Mediation Confidentiality and Privilege

 4  Act.--Sections 44.401-44.407 may be cited as the "Mediation

 5  Confidentiality and Privilege Act."

 6         Section 2.  Section 44.402, Florida Statutes, is

 7  created to read:

 8         44.402  Scope.--

 9         (1)  Except as otherwise provided, this act applies to

10  any mediation:

11         (a)  Required by statute, court rule, agency rule or

12  order, oral or written case-specific court order, or court

13  administrative order;

14         (b)  Conducted under this act by express agreement of

15  the mediation parties; or

16         (c)  Facilitated by a mediator certified by the Supreme

17  Court, unless the mediation parties expressly agree not to be

18  bound by this act.

19         (2)  Notwithstanding any other provision of

20  44.401-44.407, the mediation parties may agree in writing that

21  any or all of s. 44.405(1), s. 44.405(2), s. 44.405(5), or s.

22  44.406 will not apply to all or part of a mediation

23  proceeding.

24         Section 3.  Section 44.403, Florida Statutes, is

25  created to read:

26         44.403  Definitions.--As used in ss. 44.401-44.407, the

27  term:

28         (1)  "Mediation communication" means an oral or written

29  statement, or nonverbal conduct intended to make an assertion,

30  by or to a mediation participant made during the course of a

31  mediation, or prior to mediation if made in furtherance of a

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1  mediation. The commission of a crime during a mediation is not

 2  a mediation communication.

 3         (2)  "Mediator" means a neutral, impartial third person

 4  who facilitates the mediation process. The mediator's role is

 5  to reduce obstacles to communication, assist in identifying

 6  issues, explore alternatives, and otherwise facilitate

 7  voluntary agreements to resolve disputes, without prescribing

 8  what the resolution must be.

 9         (3)  "Mediation party" or "party" means a person

10  participating directly, or through a designated

11  representative, in a mediation and who:

12         (a)  Is a named party;

13         (b)  Is a real party in interest; or

14         (c)  Would be a named party or real party in interest

15  if an action relating to the subject matter of the mediation

16  were brought in a court of law.

17         (4)  "Mediation participant" means a mediation party or

18  a person who attends a mediation in person, by telephone,

19  video conference, or other electronic means.

20         (5)  "Subsequent proceeding" means an adjudicative

21  process that follows a mediation, including related discovery.

22         Section 4.  Section 44.404, Florida Statutes, is

23  created to read:

24         44.404  Mediation; duration.--

25         (1)  A court-ordered mediation begins when an order is

26  issued by the court and ends when:

27         (a)  A partial or complete settlement agreement,

28  intended to resolve the dispute and end the mediation, is

29  signed by the parties and, if required by law, approved by the

30  court;

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1         (b)  The mediator declares an impasse by reporting to

 2  the court or the parties the lack of an agreement;

 3         (c)  The mediation is terminated by court order, court

 4  rule, or applicable law; or

 5         (d)  The mediation is terminated, after party

 6  compliance with the court order to appear at mediation, by:

 7         1.  Agreement of the parties; or

 8         2.  One party giving written notice to all other

 9  parties, in a multiparty mediation, that the party is

10  terminating its participation in the mediation. Under this

11  circumstance, the termination is effective only for the

12  withdrawing party.

13         (2)  In all other mediations, the mediation begins when

14  the parties agree to mediate or as required by agency rule,

15  agency order, or statute, whichever occurs earlier, and ends

16  when:

17         (a)  A partial or complete settlement agreement,

18  intended to resolve the dispute and end the mediation, is

19  signed by the parties and, if required by law, approved by the

20  court;

21         (b)  The mediator declares an impasse to the parties;

22         (c)  The mediation is terminated by court order, court

23  rule, or applicable law; or

24         (d)  The mediation is terminated by:

25         1.  Agreement of the parties; or

26         2.  One party giving written notice to all other

27  parties in a multiparty mediation that the one party is

28  terminating its participation in the mediation. Under this

29  circumstance, the termination is effective only for the

30  withdrawing party.

31  

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1         Section 5.  Section 44.405, Florida Statutes, is

 2  created to read:

 3         44.405  Confidentiality; privilege; exceptions.--

 4         (1)  Except as provided in this section, all mediation

 5  communications shall be confidential. A mediation participant

 6  may not disclose a mediation communication to a person other

 7  than another mediation participant or a participant's counsel.

 8  A violation of this section may be remedied as provided by s.

 9  44.406. If the mediation is court-ordered, a violation of this

10  section may also subject the mediation participant to

11  sanctions by the court, including, but not limited to, costs,

12  attorney's fees, and mediator fees.

13         (2)  A mediation party has a privilege to refuse to

14  testify and to prevent any other person from testifying in a

15  subsequent proceeding regarding mediation communications.

16         (3)  If, in a mediation involving more than two

17  parties, a party gives written notice to the other parties

18  that the party is terminating its participation in the

19  mediation, that party shall have a privilege to refuse to

20  testify and to prevent any other person from testifying in a

21  subsequent proceeding regarding only those mediation

22  communications that occurred prior to the delivery of the

23  written notice of termination of mediation to the other

24  parties.

25         (4)(a)  Notwithstanding subsections (1) and (2), there

26  is no confidentiality or privilege attached to a signed

27  written agreement reached during a mediation, unless the

28  parties otherwise agree, or for any mediation communication:

29         1.  For which the confidentiality or privilege against

30  disclosure has been waived by all parties;

31  

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1         2.  That is willfully used to plan a crime, commit or

 2  attempt to commit a crime, conceal ongoing criminal activity,

 3  or threaten violence;

 4         3.  That requires a mandatory report pursuant to

 5  chapter 39 or chapter 415 solely for the purpose of making the

 6  mandatory report to the entity requiring the report;

 7         4.  Offered to report, prove, or disprove professional

 8  malpractice, solely for the purpose of the proceeding;

 9         5.  Offered for the limited purpose of establishing or

10  refuting legally recognized grounds for voiding or reforming a

11  settlement agreement reached during a mediation; or

12         6.  Offered to report, prove, or disprove professional

13  misconduct, solely for the internal use of the body conducting

14  the investigation of the conduct.

15         (b)  A mediation communication disclosed under any

16  provision of subparagraphs (a)3.-6. remains confidential and

17  is not discoverable or admissible for any other purpose,

18  unless otherwise permitted by this section.

19         (5)  Information that is otherwise admissible or

20  subject to discovery does not become inadmissible or protected

21  from discovery by reason of its disclosure or use in

22  mediation.

23         (6)  A party that discloses or makes a representation

24  about a privileged mediation communication waives that

25  privilege, but only to the extent necessary for the other

26  party to respond to the disclosure or representation.

27         Section 6.  Section 44.406, Florida Statutes, is

28  created to read:

29         44.406  Confidentiality; civil remedies.--

30         (1)  Any mediation participant who knowingly and

31  willfully discloses a mediation communication in violation of

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1  section 44.405 shall, upon application by any party to a court

 2  of competent jurisdiction, be subject to remedies, including:

 3         (a)  Equitable relief;

 4         (b)  Compensatory damages;

 5         (c)  Attorney's fees, mediator fees, and costs incurred

 6  in the mediation proceeding; and

 7         (d)  Reasonable attorney's fees and costs incurred in

 8  the application for remedies under this section.

 9         (2)  An application for relief filed under this section

10  may not be commenced later than 2 years after the date on

11  which the party had a reasonable opportunity to discover the

12  breach of confidentiality, but in no case more than 4 years

13  after the date of the breach.

14         Section 7.  Section 44.107, Florida Statutes, is

15  amended to read:

16         44.107  Immunity for arbitrators and mediators.--

17         (1)  An arbitrator serving appointed under s. 44.103 or

18  s. 44.104, or a mediator serving appointed under s. 44.102,

19  and a trainee fulfilling the mentorship requirements for

20  certification by the Supreme Court as a mediator shall have

21  judicial immunity in the same manner and to the same extent as

22  a judge.

23         (2)  A person serving as a mediator in any

24  noncourt-ordered mediation:

25         (a)  Required by statute or agency rule or order;

26         (b)  Conducted under ss. 44.401-44.407 by express

27  agreement of the mediation parties; or

28         (c)  Facilitated by a mediator certified by the Supreme

29  Court, unless the mediation parties expressly agree not to be

30  bound by ss. 44.401-44.407,

31  

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                                  SB 1970
    32-982C-04




 1  shall have immunity from liability arising from the

 2  performance of that person's duties while acting within the

 3  scope of the mediation function. The mediator does not have

 4  immunity if he or she acts in bad faith or with malicious

 5  purpose or in a manner exhibiting wanton and willful disregard

 6  of human rights, safety, or property.

 7         (3)  A person serving appointed under s. 44.106 to

 8  assist the Supreme Court in performing its disciplinary

 9  function shall have absolute immunity from liability arising

10  from the performance of that person's duties while acting

11  within the scope of that person's appointed function.

12         Section 8.  This act shall take effect July 1, 2004.

13  

14            *****************************************

15                          SENATE SUMMARY

16    Creates the Mediation Confidentiality and Privilege Act.
      Provides that the act applies to specified mediations.
17    Declares that all mediation communications are
      confidential unless otherwise provided in the act.
18    Provides that a mediation participant has the privilege
      not to testify concerning communications made during a
19    mediation. Describes the circumstances when mediations
      begin and end. Provides exceptions to confidentiality and
20    privilege of mediation communications. Creates civil
      remedies for disclosing mediation communications.
21    Provides immunity from liability to trainees in the
      Supreme Court's mentorship program. Confers immunity on
22    persons serving as mediators in specified circumstances.

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  8

CODING: Words stricken are deletions; words underlined are additions.

Site Map
Session:   Bills ·   Calendars ·   Bound Journals ·   Citator ·   Search ·   Appropriations ·   Redistricting ·   Bill Information Reports
Committee Publications
Historical Information
Statutes:   Introduction ·   View Statutes ·   Search Statutes
Flsenate.gov
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes.    Copyright © 2000-2020 State of Florida.     Privacy Statement     Contact Us     Get Acrobat Reader