January 27, 2020
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Senate Bill 1970

Senate Bill sb1970e1

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    CS for SB 1970                                 First Engrossed



  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; providing an effective date.

27  

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

29  

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

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


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    CS for SB 1970                                 First Engrossed



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

 2  respectively, to read:

 3         44.102  Court-ordered mediation.--

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

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

 6  prevent any person present at the proceeding from disclosing,

 7  communications made during such proceeding. All oral or

 8  written communications in a mediation proceeding, other than

 9  an executed settlement agreement, shall be exempt from the

10  requirements of chapter 119 and shall be confidential and

11  inadmissible as evidence in any subsequent legal proceeding,

12  unless all parties agree otherwise.

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

14  any disclosure of communications made confidential in

15  subsection (3) in relation to disciplinary proceedings filed

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

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

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

19  privileged communication shall be used only for the internal

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

21  release of any disciplinary files to the public, all

22  references to otherwise privileged communications shall be

23  deleted from the record. When an otherwise confidential

24  communication is used in a mediator disciplinary proceeding,

25  such communication shall be inadmissible as evidence in any

26  subsequent legal proceeding. "Subsequent legal proceeding"

27  means any legal proceeding between the parties to the

28  mediation which follows the court-ordered mediation.

29         Section 2.  Section 44.107, Florida Statutes, is

30  amended to read:

31  


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    CS for SB 1970                                 First Engrossed



 1         44.107  Immunity for arbitrators, and mediators, and

 2  mediator trainees.--

 3         (1)  Arbitrators serving An Arbitrator appointed under

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

 5  appointed under s. 44.102, and trainees fulfilling the

 6  mentorship requirements for certification by the Supreme Court

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

 8  and to the same extent as a judge.

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

10  noncourt-ordered mediation shall have immunity from liability

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

12  acting within the scope of the mediation function if such

13  mediation is:

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

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

16  agreement of the mediation parties; or

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

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

19  bound by ss. 44.401-44.406.

20  

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

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

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

24  property.

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

26  assist the Supreme Court in performing its disciplinary

27  function shall have absolute immunity from liability arising

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

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

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

31  Statutes, is amended to read:


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    CS for SB 1970                                 First Engrossed



 1         44.201  Citizen Dispute Settlement Centers;

 2  establishment; operation; confidentiality.--

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

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

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

 6  communications or materials, oral or written, is confidential

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

 8  be publicly disclosed without the written consent of all

 9  parties to the dispute. Any research or evaluation effort

10  directed at assessing program activities or performance shall

11  protect the confidentiality of such information. Each party to

12  a Citizen Dispute Settlement Center proceeding has a privilege

13  during and after those proceedings to refuse to disclose and

14  to prevent another from disclosing communications made during

15  such proceedings, whether or not the dispute was successfully

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

17  inhibit the discovery or admissibility of any information

18  which is otherwise subject to discovery or which is admissible

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

20  conduct or statements made during such mediation sessions or

21  in negotiations concerning such sessions shall be inadmissible

22  in any judicial proceeding.

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

24  44.405, and 44.406, Florida Statutes, are created to read:

25         44.401  Mediation Confidentiality and Privilege

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

27  the "Mediation Confidentiality and Privilege Act."

28         44.402  Scope.--

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

30  apply to any mediation:

31  


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    CS for SB 1970                                 First Engrossed



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

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

 3  administrative order;

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

 5  agreement of the mediation parties; or

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

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

 8  bound by ss. 44.401-44.406.

 9         (2)  Notwithstanding any other provision, the mediation

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

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

12  mediation proceeding.

13         44.403  Definitions.--As used in ss. 44.401-44.406, the

14  term:

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

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

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

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

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

20  a mediation communication.

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

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

23  video conference, or other electronic means.

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

25  participating directly, or through a designated

26  representative, in a mediation and a person who:

27         (a)  Is a named party;

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

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

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

31  were brought in a court of law.


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

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

 3  to reduce obstacles to communication, assist in identifying

 4  issues, explore alternatives, and otherwise facilitate

 5  voluntary agreements to resolve disputes, without prescribing

 6  what the resolution must be.

 7         (5)  "Subsequent proceeding" means an adjudicative

 8  process that follows a mediation, including related discovery.

 9         44.404  Mediation; duration.--

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

11  issued by the court and ends when:

12         (a)  A partial or complete settlement agreement,

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

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

15  court;

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

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

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

19  rule, or applicable law; or

20         (d)  The mediation is terminated, after party

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

22         1.  Agreement of the parties; or

23         2.  One party giving written notice to all other

24  parties in a multiparty mediation that the one party is

25  terminating its participation in the mediation. Under this

26  circumstance, the termination is effective only for the

27  withdrawing party.

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

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

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

31  when:


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    CS for SB 1970                                 First Engrossed



 1         (a)  A partial or complete settlement agreement,

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

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

 4  court;

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

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

 7  rule, or applicable law; or

 8         (d)  The mediation is terminated by:

 9         1.  Agreement of the parties; or

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

11  multiparty mediation that the one party is terminating its

12  participation in the mediation. Under this circumstance, the

13  termination is effective only for the withdrawing party.

14         44.405  Confidentiality; privilege; exceptions.--

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

16  communications shall be confidential. A mediation participant

17  shall not disclose a mediation communication to a person other

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

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

20  44.406. If the mediation is court ordered, a violation of this

21  section may also subject the mediation participant to

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

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

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

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

26  subsequent proceeding regarding mediation communications.

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

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

29  that the party is terminating its participation in the

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

31  refuse to testify and to prevent any other person from


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    CS for SB 1970                                 First Engrossed



 1  testifying in a subsequent proceeding regarding only those

 2  mediation communications that occurred prior to the delivery

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

 4  parties.

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

 6  is no confidentiality or privilege attached to a signed

 7  written agreement reached during a mediation, unless the

 8  parties agree otherwise, or for any mediation communication:

 9         1.  For which the confidentiality or privilege against

10  disclosure has been waived by all parties;

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

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

13  or threaten violence;

14         3.  That requires a mandatory report pursuant to

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

16  mandatory report to the entity requiring the report;

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

18  malpractice occurring during the mediation, solely for the

19  purpose of the professional malpractice proceeding;

20         5.  Offered for the limited purpose of establishing or

21  refuting legally recognized grounds for voiding or reforming a

22  settlement agreement reached during a mediation; or

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

24  misconduct occurring during the mediation, solely for the

25  internal use of the body conducting the investigation of the

26  conduct.

27         (b)  A mediation communication disclosed under any

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

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

30  admissible for any other purpose, unless otherwise permitted

31  by this section.


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 1         (5)  Information that is otherwise admissible or

 2  subject to discovery does not become inadmissible or protected

 3  from discovery by reason of its disclosure or use in

 4  mediation.

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

 6  about a privileged mediation communication waives that

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

 8  party to respond to the disclosure or representation.

 9         44.406  Confidentiality; civil remedies.--

10         (1)  Any mediation participant who knowingly and

11  willfully discloses a mediation communication in violation of

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

13  competent jurisdiction, be subject to remedies, including:

14         (a)  Equitable relief.

15         (b)  Compensatory damages.

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

17  incurred in the mediation proceeding.

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

19  the application for remedies under this section.

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

21  relief filed under this section may not be commenced later

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

23  reasonable opportunity to discover the breach of

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

25  date of the breach.

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

27  civil action under this section for lawful compliance with the

28  provisions of s. 119.07.

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

30  Statutes, is amended to read:

31         61.183  Mediation of certain contested issues.--


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    CS for SB 1970                                 First Engrossed



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

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

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

 4  pursuant to this section obtained by any person performing

 5  mediation duties is confidential and exempt from the

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

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

 8  research or evaluation effort directed at assessing program

 9  activities or performance must protect the confidentiality of

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

11  privilege during and after the proceeding to refuse to

12  disclose and to prevent another from disclosing communications

13  made during the proceeding, whether or not the contested

14  issues are successfully resolved. This subsection shall not be

15  construed to prevent or inhibit the discovery or admissibility

16  of any information that is otherwise subject to discovery or

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

18  except that any conduct or statements made during a mediation

19  proceeding or in negotiations concerning the proceeding are

20  inadmissible in any judicial proceeding.

21         Section 6.  This act shall take effect July 1, 2004.

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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