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Senate Bill 1970

Senate Bill sb1970c1

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

    By the Committee on Judiciary; and Senator Campbell





    308-2645-04

  1                      A bill to be entitled

  2         An act relating to mediation alternatives to

  3         judicial action; amending s. 44.102, F.S.;

  4         deleting language regarding the disclosure of

  5         specified information made during court-ordered

  6         mediation; amending s. 44.107, F.S.; providing

  7         immunity from liability for trainees in the

  8         Supreme Court's mentorship program; providing

  9         immunity from liability for persons serving as

10         mediators in specified circumstances; amending

11         s. 44.201, F.S.; deleting language regarding

12         disclosure of specified information held by

13         Citizen Dispute Resolution Centers; creating

14         ss. 44.401-44.406, F.S.; providing a popular

15         name; providing for the creation of the

16         Mediation Confidentiality and Privilege Act;

17         providing for application; providing

18         definitions; specifying when a mediation begins

19         and ends; providing for confidentiality of

20         mediation communications; providing for a

21         privilege; providing exceptions; providing for

22         civil remedies; providing a statute of

23         limitation; providing an exception; amending s.

24         61.183, F.S.; deleting language regarding

25         disclosure of specified information made during

26         cases; reenacting s. 627.7015(5), F.S.,

27         relating to statements and documents produced

28         at mediation conferences, to incorporate the

29         amendment to s. 44.107, F.S., in references

30         thereto; providing an effective date.

31  

                                  1

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




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

 2  

 3         Section 1.  Subsections (3) and (4) of section 44.102,

 4  Florida Statutes, are amended, and present subsections (5) and

 5  (6) of that section are renumbered as subsections (4) and (5),

 6  respectively, to read:

 7         44.102  Court-ordered mediation.--

 8         (3)  Each party involved in a court-ordered mediation

 9  proceeding has a privilege to refuse to disclose, and to

10  prevent any person present at the proceeding from disclosing,

11  communications made during such proceeding. All oral or

12  written communications in a mediation proceeding, other than

13  an executed settlement agreement, shall be exempt from the

14  requirements of chapter 119 and shall be confidential and

15  inadmissible as evidence in any subsequent legal proceeding,

16  unless all parties agree otherwise.

17         (4)  There shall be no privilege and no restriction on

18  any disclosure of communications made confidential in

19  subsection (3) in relation to disciplinary proceedings filed

20  against mediators pursuant to s. 44.106 and court rules, to

21  the extent the communication is used for the purposes of such

22  proceedings. In such cases, the disclosure of an otherwise

23  privileged communication shall be used only for the internal

24  use of the body conducting the investigation. Prior to the

25  release of any disciplinary files to the public, all

26  references to otherwise privileged communications shall be

27  deleted from the record. When an otherwise confidential

28  communication is used in a mediator disciplinary proceeding,

29  such communication shall be inadmissible as evidence in any

30  subsequent legal proceeding. "Subsequent legal proceeding"

31  

                                  2

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




 1  means any legal proceeding between the parties to the

 2  mediation which follows the court-ordered mediation.

 3         Section 2.  Section 44.107, Florida Statutes, is

 4  amended to read:

 5         44.107  Immunity for arbitrators, and mediators, and

 6  mediator trainees.--

 7         (1)  Arbitrators serving An Arbitrator appointed under

 8  s. 44.103 or s. 44.104, mediators serving or a mediator

 9  appointed under s. 44.102, and trainees fulfilling the

10  mentorship requirements for certification by the Supreme Court

11  as a mediator shall have judicial immunity in the same manner

12  and to the same extent as a judge.

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

14  noncourt-ordered mediation shall have immunity from liability

15  arising from the performance of that person's duties while

16  acting within the scope of the mediation function if such

17  mediation is:

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

19         (b)  Conducted under ss. 44.401-44.406 by express

20  agreement of the mediation parties; or

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

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

23  bound by ss. 44.401-44.406.

24  

25  The mediator does not have immunity if he or she acts in bad

26  faith, with malicious purpose, or in a manner exhibiting

27  wanton and willful disregard of human rights, safety, or

28  property.

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

30  assist the Supreme Court in performing its disciplinary

31  function shall have absolute immunity from liability arising

                                  3

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




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

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

 3         Section 3.  Subsection (5) of section 44.201, Florida

 4  Statutes, is amended to read:

 5         44.201  Citizen Dispute Settlement Centers;

 6  establishment; operation; confidentiality.--

 7         (5)  Any information relating to a dispute obtained by

 8  any person while performing any duties for the center from the

 9  files, reports, case summaries, mediator's notes, or other

10  communications or materials, oral or written, is confidential

11  and exempt from the provisions of s. 119.07(1) and shall not

12  be publicly disclosed without the written consent of all

13  parties to the dispute. Any research or evaluation effort

14  directed at assessing program activities or performance shall

15  protect the confidentiality of such information. Each party to

16  a Citizen Dispute Settlement Center proceeding has a privilege

17  during and after those proceedings to refuse to disclose and

18  to prevent another from disclosing communications made during

19  such proceedings, whether or not the dispute was successfully

20  resolved. This subsection shall not be construed to prevent or

21  inhibit the discovery or admissibility of any information

22  which is otherwise subject to discovery or which is admissible

23  under applicable law or rules of court, except that any

24  conduct or statements made during such mediation sessions or

25  in negotiations concerning such sessions shall be inadmissible

26  in any judicial proceeding.

27         Section 4.  Sections 44.401, 44.402, 44.403, 44.404,

28  44.405, and 44.406, Florida Statutes, are created to read:

29         44.401  Mediation Confidentiality and Privilege

30  Act.--Sections 44.401-44.406 may be known by the popular name

31  the "Mediation Confidentiality and Privilege Act."

                                  4

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




 1         44.402  Scope.--

 2         (1)  Except as otherwise provided, ss. 44.401-44.406

 3  apply to any mediation:

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

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

 6  administrative order;

 7         (b)  Conducted under ss. 44.401-44.406 by express

 8  agreement of the mediation parties; or

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

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

11  bound by ss. 44.401-44.406.

12         (2)  Notwithstanding any other provision, the mediation

13  parties may agree in writing that any or all of s. 44.405(1),

14  s. 44.405(2), or s. 44.406 will not apply to all or part of a

15  mediation proceeding.

16         44.403  Definitions.--As used in ss. 44.401-44.406, the

17  term:

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

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

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

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

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

23  a mediation communication.

24         (2)  "Mediation participant" means a mediation party or

25  a person who attends a mediation in person or by telephone,

26  video conference, or other electronic means.

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

28  participating directly, or through a designated

29  representative, in a mediation and a person who:

30         (a)  Is a named party;

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

                                  5

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




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

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

 3  were brought in a court of law.

 4         (4)  "Mediator" means a neutral, impartial third person

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

 6  to reduce obstacles to communication, assist in identifying

 7  issues, explore alternatives, and otherwise facilitate

 8  voluntary agreements to resolve disputes, without prescribing

 9  what the resolution must be.

10         (5)  "Subsequent proceeding" means an adjudicative

11  process that follows a mediation, including related discovery.

12         44.404  Mediation; duration.--

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

14  issued by the court and ends when:

15         (a)  A partial or complete settlement agreement,

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

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

18  court;

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

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

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

22  rule, or applicable law; or

23         (d)  The mediation is terminated, after party

24  compliance with the court order to appear at mediation, 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  

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




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

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

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

 4  when:

 5         (a)  A partial or complete settlement agreement,

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

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

 8  court;

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

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

11  rule, or applicable law; or

12         (d)  The mediation is terminated by:

13         1.  Agreement of the parties; or

14         2.  One party giving notice to all other parties in a

15  multiparty mediation that the one party is terminating its

16  participation in the mediation. Under this circumstance, the

17  termination is effective only for the withdrawing party.

18         44.405  Confidentiality; privilege; exceptions.--

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

20  communications shall be confidential. A mediation participant

21  shall not disclose a mediation communication to a person other

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

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

24  44.406. If the mediation is court ordered, a violation of this

25  section may also subject the mediation participant to

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

27  attorney's fees, and mediator's fees.

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

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

30  subsequent proceeding regarding mediation communications.

31  

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




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

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

 3  that the party is terminating its participation in the

 4  mediation, the party giving notice shall have a privilege to

 5  refuse to testify and to prevent any other person from

 6  testifying in a subsequent proceeding regarding only those

 7  mediation communications that occurred prior to the delivery

 8  of the written notice of termination of mediation to the other

 9  parties.

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

11  is no confidentiality or privilege attached to a signed

12  written agreement reached during a mediation, unless the

13  parties agree otherwise, or for any mediation communication:

14         1.  For which the confidentiality or privilege against

15  disclosure has been waived by all parties;

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

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

18  or threaten violence;

19         3.  That requires a mandatory report pursuant to

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

21  mandatory report to the entity requiring the report;

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

23  malpractice occurring during the mediation, solely for the

24  purpose of the professional malpractice proceeding;

25         5.  Offered for the limited purpose of establishing or

26  refuting legally recognized grounds for voiding or reforming a

27  settlement agreement reached during a mediation; or

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

29  misconduct occurring during the mediation, solely for the

30  internal use of the body conducting the investigation of the

31  conduct.

                                  8

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




 1         (b)  A mediation communication disclosed under any

 2  provision of subparagraphs (4)(a)3., (4)(a)4., (4)(a)5., or

 3  (4)(a)6. remains confidential and is not discoverable or

 4  admissible for any other purpose, unless otherwise permitted

 5  by this section.

 6         (5)  Information that is otherwise admissible or

 7  subject to discovery does not become inadmissible or protected

 8  from discovery by reason of its disclosure or use in

 9  mediation.

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

11  about a privileged mediation communication waives that

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

13  party to respond to the disclosure or representation.

14         44.406  Confidentiality; civil remedies.--

15         (1)  Any mediation participant who knowingly and

16  willfully discloses a mediation communication in violation of

17  s. 44.405 shall, upon application by any party to a court of

18  competent jurisdiction, be subject to remedies, including:

19         (a)  Equitable relief.

20         (b)  Compensatory damages.

21         (c)  Attorney's fees, mediator's fees, and costs

22  incurred in the mediation proceeding.

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

24  the application for remedies under this section.

25         (2)  Notwithstanding any other law, an application for

26  relief filed under this section may not be commenced later

27  than 2 years after the date on which the party had a

28  reasonable opportunity to discover the breach of

29  confidentiality, but in no case more than 4 years after the

30  date of the breach.

31  

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




 1         (3)  A mediation participant shall not be subject to a

 2  civil action under this section for lawful compliance with the

 3  provisions of s. 119.07.

 4         Section 5.  Subsection (3) of section 61.183, Florida

 5  Statutes, is amended to read:

 6         61.183  Mediation of certain contested issues.--

 7         (3)  Any information from the files, reports, case

 8  summaries, mediator's notes, or other communications or

 9  materials, oral or written, relating to a mediation proceeding

10  pursuant to this section obtained by any person performing

11  mediation duties is confidential and exempt from the

12  provisions of s. 119.07(1) and may not be disclosed without

13  the written consent of all parties to the proceeding. Any

14  research or evaluation effort directed at assessing program

15  activities or performance must protect the confidentiality of

16  such information. Each party to a mediation proceeding has a

17  privilege during and after the proceeding to refuse to

18  disclose and to prevent another from disclosing communications

19  made during the proceeding, whether or not the contested

20  issues are successfully resolved. This subsection shall not be

21  construed to prevent or inhibit the discovery or admissibility

22  of any information that is otherwise subject to discovery or

23  that is admissible under applicable law or rules of court,

24  except that any conduct or statements made during a mediation

25  proceeding or in negotiations concerning the proceeding are

26  inadmissible in any judicial proceeding.

27         Section 6.  For the purposes of incorporating the

28  amendment made by this act to section 44.107, Florida

29  Statutes, in a reference thereto, subsection (5) of section

30  627.7015, Florida Statutes, is reenacted to read:

31  

                                  10

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    Florida Senate - 2004                           CS for SB 1970
    308-2645-04




 1         627.7015  Alternative procedure for resolution of

 2  disputed property insurance claims.--

 3         (5)  All statements made and documents produced at a

 4  mediation conference shall be deemed to be settlement

 5  negotiations in anticipation of litigation within the scope of

 6  s. 90.408. All parties to the mediation must negotiate in good

 7  faith and must have the authority to immediately settle the

 8  claim. Mediators are deemed to be agents of the department and

 9  shall have the immunity from suit provided in s. 44.107.

10         Section 7.  This act shall take effect July 1, 2004.

11  

12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                         Senate Bill 1970

14                                 

15  This CS creates the Mediation Confidentiality and Privilege
    Act, which provides as follows:
16  
    -    Clarifies that no confidentiality or privilege exists
17       regarding signed written agreements reached during
         mediation and offered to report, prove, or disprove
18       professional malpractice or misconduct that occurs during
         the mediation.
19  
    -    Clarifies that the period of limitation to bring an
20       action for a violation under this Act applies
         notwithstanding any other law, and that a mediation
21       participant is not subject to civil action where the
         participant acts lawfully in compliance with public
22       records law.

23  This CS additionally makes the following changes:

24  -    Revises existing law relating to Citizen Dispute
         Settlement Centers, to clarify that information relating
25       to a dispute obtained by any person performing duties for
         the Center is exempt from disclosure.
26  
    -    Revises existing law relating to child support
27       mediations, to clarify that all information relating to
         mediation proceedings in child support cases is exempt
28       from disclosure.

29  -    Reenacts a cross-reference.

30  

31  

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