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2022 Florida Statutes (including 2022C, 2022D, 2022A, and 2023B)
Chapter 44
MEDIATION ALTERNATIVES TO JUDICIAL ACTION
MEDIATION ALTERNATIVES TO JUDICIAL ACTION
CHAPTER 44
MEDIATION ALTERNATIVES TO JUDICIAL ACTION
44.1011 Definitions.
44.102 Court-ordered mediation.
44.103 Court-ordered, nonbinding arbitration.
44.104 Voluntary binding arbitration and voluntary trial resolution.
44.106 Standards and procedures for mediators and arbitrators; fees.
44.107 Immunity for arbitrators, mediators, and mediator trainees.
44.108 Funding of mediation and arbitration.
44.201 Citizen Dispute Settlement Centers; establishment; operation; confidentiality.
44.401 Mediation Confidentiality and Privilege Act.
44.402 Scope.
44.403 Mediation Confidentiality and Privilege Act; definitions.
44.404 Mediation; duration.
44.405 Confidentiality; privilege; exceptions.
44.406 Confidentiality; civil remedies.
44.407 Elder-focused dispute resolution process.
44.1011 Definitions.—As used in this chapter:
(1) “Arbitration” means a process whereby a neutral third person or panel, called an arbitrator or arbitration panel, considers the facts and arguments presented by the parties and renders a decision which may be binding or nonbinding as provided in this chapter.
(2) “Mediation” means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decisionmaking authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. “Mediation” includes:
(a) “Appellate court mediation,” which means mediation that occurs during the pendency of an appeal of a civil case.
(b) “Circuit court mediation,” which means mediation of civil cases, other than family matters, in circuit court. If a party is represented by counsel, the counsel of record must appear unless stipulated to by the parties or otherwise ordered by the court.
(c) “County court mediation,” which means mediation of civil cases within the jurisdiction of county courts, including small claims. Negotiations in county court mediation are primarily conducted by the parties. Counsel for each party may participate. However, presence of counsel is not required.
(d) “Family mediation” which means mediation of family matters, including married and unmarried persons, before and after judgments involving dissolution of marriage; property division; shared or sole parental responsibility; or child support, custody, and visitation involving emotional or financial considerations not usually present in other circuit civil cases. Negotiations in family mediation are primarily conducted by the parties. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required, and, in the discretion of the mediator, and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.
(e) “Dependency or in need of services mediation,” which means mediation of dependency, child in need of services, or family in need of services matters. Negotiations in dependency or in need of services mediation are primarily conducted by the parties. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required and, in the discretion of the mediator and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.
History.—s. 1, ch. 87-173; s. 1, ch. 90-188; s. 43, ch. 94-164; s. 54, ch. 95-280.
Note.—Former s. 44.301.
44.102 Court-ordered mediation.—
(1) Court-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court.
(2) A court, under rules adopted by the Supreme Court:
(a) 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:
1. The action is a landlord and tenant dispute that does not include a claim for personal injury.
2. The action is filed for the purpose of collecting a debt.
3. The action is a claim of medical malpractice.
4. The action is governed by the Florida Small Claims Rules.
5. The court determines that the action is proper for referral to nonbinding arbitration under this chapter.
6. The parties have agreed to binding arbitration.
7. The parties have agreed to an expedited trial pursuant to s. 45.075.
8. The parties have agreed to voluntary trial resolution pursuant to s. 44.104.
(b) May refer to mediation all or any part of a filed civil action for which mediation is not required under this section.
(c) In circuits in which a family mediation program has been established and upon a court finding of a dispute, shall refer to mediation all or part of custody, visitation, or other parental responsibility issues as defined in s. 61.13. Upon motion or request of a party, a court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process.
(d) In circuits in which a dependency or in need of services mediation program has been established, may refer to mediation all or any portion of a matter relating to dependency or to a child in need of services or a family in need of services.
(3) All written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119.
(4) The chief judge of each judicial circuit shall maintain a list of mediators who have been certified by the Supreme Court and who have registered for appointment in that circuit.
(a) Whenever possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. If a mediation program is funded pursuant to s. 44.108, volunteer mediators shall be entitled to reimbursement pursuant to s. 112.061 for all actual expenses necessitated by service as a mediator.
(b) Nonvolunteer mediators shall be compensated according to rules adopted by the Supreme Court. If a mediation program is funded pursuant to s. 44.108, a mediator may be compensated by the county or by the parties.
(5)(a) When an action is referred to mediation by court order, the time periods for responding to an offer of settlement pursuant to s. 45.061, or to an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled until:
1. An impasse has been declared by the mediator; or
2. The mediator has reported to the court that no agreement was reached.
(b) Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. An offer is deemed rejected as of commencement of trial.
History.—s. 2, ch. 87-173; s. 2, ch. 89-31; s. 2, ch. 90-188; s. 2, ch. 93-161; s. 10, ch. 94-134; s. 10, ch. 94-135; s. 44, ch. 94-164; s. 18, ch. 96-406; s. 2, ch. 97-155; s. 2, ch. 99-225; s. 2, ch. 2002-65; s. 1, ch. 2004-291; s. 31, ch. 2005-236.
Note.—Former s. 44.302.
44.103 Court-ordered, nonbinding arbitration.—
(1) Court-ordered, nonbinding arbitration shall be conducted according to the rules of practice and procedure adopted by the Supreme Court.
(2) A court, pursuant to rules adopted by the Supreme Court, may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.
(3) Arbitrators shall be selected and compensated in accordance with rules adopted by the Supreme Court. Arbitrators shall be compensated by the parties, or, upon a finding by the court that a party is indigent, an arbitrator may be partially or fully compensated from state funds according to the party’s present ability to pay. At no time may an arbitrator charge more than $1,500 per diem, unless the parties agree otherwise. Prior to approving the use of state funds to reimburse an arbitrator, the court must ensure that the party reimburses the portion of the total cost that the party is immediately able to pay and that the party has agreed to a payment plan established by the clerk of the court that will fully reimburse the state for the balance of all state costs for both the arbitrator and any costs of administering the payment plan and any collection efforts that may be necessary in the future. Whenever possible, qualified individuals who have volunteered their time to serve as arbitrators shall be appointed. If an arbitration program is funded pursuant to s. 44.108, volunteer arbitrators shall be entitled to be reimbursed pursuant to s. 112.061 for all actual expenses necessitated by service as an arbitrator.
(4) An arbitrator or, in the case of a panel, the chief arbitrator, shall have such power to administer oaths or affirmations and to conduct the proceedings as the rules of court shall provide. The hearing shall be conducted informally. Presentation of testimony and evidence shall be kept to a minimum, and matters shall be presented to the arbitrators primarily through the statements and arguments of counsel. Any party to the arbitration may petition the court in the underlying action, for good cause shown, to authorize the arbitrator to issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence at the arbitration and may petition the court for orders compelling such attendance and production at the arbitration. Subpoenas shall be served and shall be enforceable in the manner provided by law.
(5) The arbitration decision shall be presented to the parties in writing. An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court. The decision shall not be made known to the judge who may preside over the case unless no request for trial de novo is made as herein provided or unless otherwise provided by law. If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.
(6) Upon motion made by either party within 30 days after entry of judgment, the court may assess costs against the party requesting a trial de novo, including arbitration costs, court costs, reasonable attorney’s fees, and other reasonable costs such as investigation expenses and expenses for expert or other testimony which were incurred after the arbitration hearing and continuing through the trial of the case in accordance with the guidelines for taxation of costs as adopted by the Supreme Court. Such costs may be assessed if:
(a) The plaintiff, having filed for a trial de novo, obtains a judgment at trial which is at least 25 percent less than the arbitration award. In such instance, the costs and attorney’s fees pursuant to this section shall be set off against the award. When the costs and attorney’s fees pursuant to this section total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and attorney’s fees, less the amount of the award to the plaintiff. For purposes of a determination under this paragraph, the term “judgment” means the amount of the net judgment entered, plus all taxable costs pursuant to the guidelines for taxation of costs as adopted by the Supreme Court, plus any postarbitration collateral source payments received or due as of the date of the judgment, and plus any postarbitration settlement amounts by which the verdict was reduced; or
(b) The defendant, having filed for a trial de novo, has a judgment entered against the defendant which is at least 25 percent more than the arbitration award. For purposes of a determination under this paragraph, the term “judgment” means the amount of the net judgment entered, plus any postarbitration settlement amounts by which the verdict was reduced.
History.—s. 3, ch. 87-173; s. 3, ch. 89-31; s. 3, ch. 90-188; s. 3, ch. 93-161; s. 43, ch. 2004-265; s. 32, ch. 2005-236; s. 1, ch. 2007-206.
Note.—Former s. 44.303.
44.104 Voluntary binding arbitration and voluntary trial resolution.—
(1) Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration, or voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.
(2) If the parties have entered into an agreement which provides in voluntary binding arbitration for a method for appointing of one or more arbitrators, or which provides in voluntary trial resolution a method for appointing a member of The Florida Bar in good standing for more than 5 years to act as trial resolution judge, the court shall proceed with the appointment as prescribed. However, in voluntary binding arbitration at least one of the arbitrators, who shall serve as the chief arbitrator, shall meet the qualifications and training requirements adopted pursuant to s. 44.106. In the absence of an agreement, or if the agreement method fails or for any reason cannot be followed, the court, on application of a party, shall appoint one or more qualified arbitrators, or the trial resolution judge, as the case requires.
(3) The arbitrators or trial resolution judge shall be compensated by the parties according to their agreement.
(4) Within 10 days after the submission of the request for binding arbitration, or voluntary trial resolution, the court shall provide for the appointment of the arbitrator or arbitrators, or trial resolution judge, as the case requires. Once appointed, the arbitrators or trial resolution judge shall notify the parties of the time and place for the hearing.
(5) Application for voluntary binding arbitration or voluntary trial resolution shall be filed and fees paid to the clerk of court as if for complaints initiating civil actions. The clerk of the court shall handle and account for these matters in all respects as if they were civil actions, except that the clerk of court shall keep separate the records of the applications for voluntary binding arbitration and the records of the applications for voluntary trial resolution from all other civil actions.
(6) Filing of the application for binding arbitration or voluntary trial resolution will toll the running of the applicable statutes of limitation.
(7) The chief arbitrator or trial resolution judge may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide. At the request of any party, the chief arbitrator or trial resolution judge shall issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law.
(8) A voluntary binding arbitration hearing shall be conducted by all of the arbitrators, but a majority may determine any question and render a final decision. A trial resolution judge shall conduct a voluntary trial resolution hearing. The trial resolution judge may determine any question and render a final decision.
(9) The Florida Evidence Code shall apply to all proceedings under this section.
(10) An appeal of a voluntary binding arbitration decision shall be taken to the circuit court and shall be limited to review on the record and not de novo, of:
(a) Any alleged failure of the arbitrators to comply with the applicable rules of procedure or evidence.
(b) Any alleged partiality or misconduct by an arbitrator prejudicing the rights of any party.
(c) Whether the decision reaches a result contrary to the Constitution of the United States or of the State of Florida.
(11) Any party may enforce a final decision rendered in a voluntary trial by filing a petition for final judgment in the circuit court in the circuit in which the voluntary trial took place. Upon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court. Factual findings determined in the voluntary trial are not subject to appeal.
(12) The harmless error doctrine shall apply in all appeals. No further review shall be permitted unless a constitutional issue is raised.
(13) If no appeal is taken within the time provided by rules promulgated by the Supreme Court, then the decision shall be referred to the presiding judge in the case, or if one has not been assigned, then to the chief judge of the circuit for assignment to a circuit judge, who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court and for which judgments execution shall issue on request of a party.
(14) This section shall not apply to any dispute involving child custody, visitation, or child support, or to any dispute which involves the rights of a third party not a party to the arbitration or voluntary trial resolution when the third party would be an indispensable party if the dispute were resolved in court or when the third party notifies the chief arbitrator or the trial resolution judge that the third party would be a proper party if the dispute were resolved in court, that the third party intends to intervene in the action in court, and that the third party does not agree to proceed under this section.
History.—s. 4, ch. 87-173; s. 4, ch. 89-31; s. 4, ch. 90-188; s. 3, ch. 99-225.
Note.—Former s. 44.304.
44.106 Standards and procedures for mediators and arbitrators; fees.—
(1) The Supreme Court shall establish minimum standards and procedures for qualifications, certification, professional conduct, discipline, and training for mediators and arbitrators who are appointed pursuant to this chapter. The Supreme Court is authorized to set fees to be charged to applicants for certification and renewal of certification. The revenues generated from these fees shall be used to offset the costs of administration of the certification process. The Supreme Court may appoint or employ such personnel as are necessary to assist the court in exercising its powers and performing its duties under this chapter.
(2) An applicant for certification as a mediator shall undergo a security background investigation, which includes, but is not limited to, submitting a full set of fingerprints to the Department of Law Enforcement or to a vendor, entity, or agency authorized by s. 943.053. The vendor, entity, or agency shall forward the fingerprints to the department for state processing, and the department shall forward the fingerprints to the Federal Bureau of Investigation for national processing. Any vendor fee and state and federal processing fees shall be borne by the applicant. For records provided to a person or entity other than those excepted therein, the cost for state fingerprint processing is the fee authorized in s. 943.053(3)(e).
History.—s. 6, ch. 87-173; s. 6, ch. 90-188; s. 2, ch. 2019-98.
Note.—Former s. 44.306.
44.107 Immunity for arbitrators, mediators, and mediator trainees.—
(1) Arbitrators serving under s. 44.103 or s. 44.104, mediators serving under s. 44.102, and trainees fulfilling the mentorship requirements for certification by the Supreme Court as a mediator shall have judicial immunity in the same manner and to the same extent as a judge.
(2) A person serving as a mediator in any noncourt-ordered mediation shall have immunity from liability arising from the performance of that person’s duties while acting within the scope of the mediation function if such mediation is:
(a) Required by statute or agency rule or order;
(b) Conducted under ss. 44.401-44.406 by express agreement of the mediation parties; or
(c) Facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by ss. 44.401-44.406.
The mediator does not have immunity if he or she acts in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
(3) A person serving under s. 44.106 to assist the Supreme Court in performing its disciplinary function shall have absolute immunity from liability arising from the performance of that person’s duties while acting within the scope of that person’s appointed function.
History.—s. 5, ch. 89-31; s. 7, ch. 90-188; s. 1, ch. 95-421; s. 2, ch. 2004-291.
Note.—Former s. 44.307.
44.108 Funding of mediation and arbitration.—
(1) Mediation and arbitration should be accessible to all parties regardless of financial status. A filing fee of $1 is levied on all proceedings in the circuit or county courts to fund mediation and arbitration services which are the responsibility of the Supreme Court pursuant to the provisions of s. 44.106. The clerk of the court shall forward the moneys collected to the Department of Revenue for deposit in the State Courts Revenue Trust Fund.
(2) When court-ordered mediation services are provided by a circuit court’s mediation program, the following fees, unless otherwise established in the General Appropriations Act, shall be collected by the clerk of court:
(a) One-hundred twenty dollars per person per scheduled session in family mediation when the parties’ combined income is greater than $50,000, but less than $100,000 per year;
(b) Sixty dollars per person per scheduled session in family mediation when the parties’ combined income is less than $50,000; or
(c) Sixty dollars per person per scheduled session in county court cases involving an amount in controversy not exceeding $15,000.
No mediation fees shall be assessed under this subsection in residential eviction cases, against a party found to be indigent, or for any small claims action. Fees collected by the clerk of court pursuant to this section shall be remitted to the Department of Revenue for deposit into the State Courts Revenue Trust Fund to fund court-ordered mediation. The clerk of court may deduct $1 per fee assessment for processing this fee. The clerk of the court shall submit to the chief judge of the circuit and to the Office of the State Courts Administrator, no later than 30 days after the end of each quarter of the fiscal year, a report specifying the amount of funds collected and remitted to the State Courts Revenue Trust Fund under this section and any other section during the previous quarter of the fiscal year. In addition to identifying the total aggregate collections and remissions from all statutory sources, the report must identify collections and remissions by each statutory source.
History.—s. 6, ch. 89-31; s. 8, ch. 90-188; s. 6, ch. 91-152; s. 8, ch. 2001-122; s. 12, ch. 2001-380; s. 66, ch. 2003-402; s. 44, ch. 2004-265; s. 33, ch. 2005-236; s. 24, ch. 2008-111; s. 12, ch. 2010-153; s. 4, ch. 2011-133; s. 11, ch. 2019-58.
Note.—Former s. 44.308.
44.201 Citizen Dispute Settlement Centers; establishment; operation; confidentiality.—
(1) The chief judge of a judicial circuit, after consultation with the board of county commissioners of a county or with two or more boards of county commissioners of counties within the judicial circuit, may establish a Citizen Dispute Settlement Center for such county or counties, with the approval of the Chief Justice.
(2)(a) Each Citizen Dispute Settlement Center shall be administered in accordance with rules adopted by a council composed of at least seven members. The chief judge of the judicial circuit shall serve as chair of the council and shall appoint the other members of the council. The membership of the council shall include a representative of the state attorney, each sheriff, a county court judge, and each board of county commissioners within the geographical jurisdiction of the center. In addition, council membership shall include two members of the general public who are not representatives of such officers or boards. The membership of the council also may include other interested persons.
(b) The council shall establish qualifications for and appoint a director of the center. The director shall administer the operations of the center.
(c) A council may seek and accept contributions from counties and municipalities within the geographical jurisdiction of the Citizen Dispute Settlement Center and from agencies of the Federal Government, private sources, and other available funds and may expend such funds to carry out the purposes of this section.
(3) The Citizen Dispute Settlement Center, subject to the approval of the council and the Chief Justice, shall formulate and implement a plan for creating an informal forum for the mediation and settlement of disputes. Such plan shall prescribe:
(a) Objectives and purposes of the center;
(b) Procedures for filing complaints with the center and for scheduling informal mediation sessions with the parties to a complaint;
(c) Screening procedures to ensure that each dispute mediated by the center meets the criteria of fitness for mediation as set by the council;
(d) Procedures for rejecting any dispute which does not meet the established criteria of fitness for mediation;
(e) Procedures for giving notice of the time, place, and nature of the mediation session to the parties and for conducting mediation sessions;
(f) Procedures to ensure that participation by all parties is voluntary; and
(g) Procedures by which any dispute that was referred to the center by a law enforcement agency, state attorney, court, or other agency and that fails at mediation, or that reaches settlement that is later breached, is reported to the referring agency.
(4)(a) Each mediation session conducted by a Citizen Dispute Settlement Center shall be nonjudicial and informal. No adjudication, sanction, or penalty may be made or imposed by the mediator or the center.
(b) A Citizen Dispute Settlement Center may refer the parties to judicial or nonjudicial supportive service agencies.
(5) Any information relating to a dispute obtained by any person while performing any duties for the center from the files, reports, case summaries, mediator’s notes, or other communications or materials is exempt from the provisions of s. 119.07(1).
(6) No officer, council member, employee, volunteer, or agent of a Citizen Dispute Settlement Center shall be held liable for civil damages for any act or omission in the scope of employment or function, unless such person acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of the rights, safety, or property of another.
(7) Any Citizen Dispute Settlement Center in operation on October 1, 1985, may continue its operations in its current form with the approval of the chief judge of the judicial circuit in which such center is located, except that paragraph (4)(b) and subsections (5) and (6) shall apply to such centers.
(8) Any utility regulated by the Florida Public Service Commission is excluded from the provisions of this act.
History.—s. 2, ch. 85-228; s. 16, ch. 90-360; s. 263, ch. 95-147; s. 19, ch. 96-406; s. 3, ch. 2004-291.
44.401 Mediation Confidentiality and Privilege Act.—Sections 44.401-44.406 may be known by the popular name the “Mediation Confidentiality and Privilege Act.”
History.—s. 4, ch. 2004-291.
44.402 Scope.—
(1) Except as otherwise provided, ss. 44.401-44.406 apply to any mediation:
(a) Required by statute, court rule, agency rule or order, oral or written case-specific court order, or court administrative order;
(b) Conducted under ss. 44.401-44.406 by express agreement of the mediation parties; or
(c) Facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by ss. 44.401-44.406.
(2) Notwithstanding any other provision, the mediation parties may agree in writing that any or all of s. 44.405(1), s. 44.405(2), or s. 44.406 will not apply to all or part of a mediation proceeding.
History.—s. 4, ch. 2004-291.
44.403 Mediation Confidentiality and Privilege Act; definitions.—As used in ss. 44.401-44.406, the term:
(1) “Mediation communication” means an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.
(2) “Mediation participant” means a mediation party or a person who attends a mediation in person or by telephone, video conference, or other electronic means.
(3) “Mediation party” or “party” means a person participating directly, or through a designated representative, in a mediation and a person who:
(a) Is a named party;
(b) Is a real party in interest; or
(c) Would be a named party or real party in interest if an action relating to the subject matter of the mediation were brought in a court of law.
(4) “Mediator” means a neutral, impartial third person who facilitates the mediation process. The mediator’s role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be.
(5) “Subsequent proceeding” means an adjudicative process that follows a mediation, including related discovery.
History.—s. 4, ch. 2004-291.
44.404 Mediation; duration.—
(1) A court-ordered mediation begins when an order is issued by the court and ends when:
(a) A partial or complete settlement agreement, intended to resolve the dispute and end the mediation, is signed by the parties and, if required by law, approved by the court;
(b) The mediator declares an impasse by reporting to the court or the parties the lack of an agreement;
(c) The mediation is terminated by court order, court rule, or applicable law; or
(d) The mediation is terminated, after party compliance with the court order to appear at mediation, by:
1. Agreement of the parties; or
2. One party giving written notice to all other parties in a multiparty mediation that the one party is terminating its participation in the mediation. Under this circumstance, the termination is effective only for the withdrawing party.
(2) In all other mediations, the mediation begins when the parties agree to mediate or as required by agency rule, agency order, or statute, whichever occurs earlier, and ends when:
(a) A partial or complete settlement agreement, intended to resolve the dispute and end the mediation, is signed by the parties and, if required by law, approved by the court;
(b) The mediator declares an impasse to the parties;
(c) The mediation is terminated by court order, court rule, or applicable law; or
(d) The mediation is terminated by:
1. Agreement of the parties; or
2. One party giving notice to all other parties in a multiparty mediation that the one party is terminating its participation in the mediation. Under this circumstance, the termination is effective only for the withdrawing party.
History.—s. 4, ch. 2004-291.
44.405 Confidentiality; privilege; exceptions.—
(1) Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel. A violation of this section may be remedied as provided by s. 44.406. If the mediation is court ordered, a violation of this section may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney’s fees, and mediator’s fees.
(2) A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.
(3) If, in a mediation involving more than two parties, a party gives written notice to the other parties that the party is terminating its participation in the mediation, the party giving notice shall have a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding only those mediation communications that occurred prior to the delivery of the written notice of termination of mediation to the other parties.
(4)(a) Notwithstanding subsections (1) and (2), there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication:
1. For which the confidentiality or privilege against disclosure has been waived by all parties;
2. That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence;
3. That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report;
4. Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding;
5. Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation; or
6. Offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.
(b) A mediation communication disclosed under any provision of subparagraph (a)3., subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6. remains confidential and is not discoverable or admissible for any other purpose, unless otherwise permitted by this section.
(5) Information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation.
(6) A party that discloses or makes a representation about a privileged mediation communication waives that privilege, but only to the extent necessary for the other party to respond to the disclosure or representation.
History.—s. 4, ch. 2004-291.
44.406 Confidentiality; civil remedies.—
(1) Any mediation participant who knowingly and willfully discloses a mediation communication in violation of s. 44.405 shall, upon application by any party to a court of competent jurisdiction, be subject to remedies, including:
(a) Equitable relief.
(b) Compensatory damages.
(c) Attorney’s fees, mediator’s fees, and costs incurred in the mediation proceeding.
(d) Reasonable attorney’s fees and costs incurred in the application for remedies under this section.
(2) Notwithstanding any other law, an application for relief filed under this section may not be commenced later than 2 years after the date on which the party had a reasonable opportunity to discover the breach of confidentiality, but in no case more than 4 years after the date of the breach.
(3) A mediation participant shall not be subject to a civil action under this section for lawful compliance with the provisions of s. 119.07.
History.—s. 4, ch. 2004-291.
44.407 Elder-focused dispute resolution process.—
(1) LEGISLATIVE FINDINGS.—The Legislature finds that:
(a) Denying an elder a voice in decisions regarding himself or herself may negatively affect the elder’s health and well-being, as well as deprive the elder of his or her legal rights. Even if an elder is losing capacity to make major decisions for himself or herself, the elder is still entitled to the dignity of having his or her voice heard.
(b) In conjunction with proceedings in court, it is in the best interest of an elder, his or her family members, and legally recognized decisionmakers to have access to a nonadversarial process to resolve disputes relating to the elder which focuses on the elder’s wants, needs, and best interests. Such a process will protect and preserve the elder’s exercisable rights.
(c) By recognizing that every elder, including those whose capacity is being questioned, has unique needs, interests, and differing abilities, the Legislature intends for this section to promote the public welfare by establishing a unique dispute resolution option to complement and enhance, not replace, other services, such as the provision of legal information or legal representation; financial advice; individual or family therapy; medical, psychological, or psychiatric evaluation; or mediation, specifically for issues related to the care and needs of elders. The Legislature intends that this section be liberally construed to accomplish these goals.
(2) DEFINITIONS.—As used in this section, the term:
(a) “Action,” for purposes of using eldercaring coordination solely to address disputes regarding the care and safety of the elder, means a proceeding in which a party sought or seeks a judgment or order from the court to:
1. Determine if someone is or is not incapacitated pursuant to s. 744.331.
2. Appoint or remove a guardian or guardian advocate.
3. Review any actions of a guardian.
4. Execute an investigation pursuant to s. 415.104.
5. Review an agent’s actions pursuant to s. 709.2116.
6. Review a proxy’s decision pursuant to s. 765.105.
7. Enter an injunction for the protection of an elder under s. 825.1035.
8. Follow up on a complaint made to the Office of Public and Professional Guardians pursuant to s. 744.2004.
9. At the discretion of the presiding judge, address any other matters pending before the court which involve the care and safety of an elder.
The term does not include any action brought under chapters 732, 733, and 736.
(b) “Care and safety” means the condition of the elder’s general physical, mental, emotional, psychological, and social well-being. The term does not include a determination of capacity by the court under s. 744.331(5) and (6). Unless the parties agree otherwise, the term does not include matters relating to the elder’s estate planning; the elder’s agent designations under chapter 709; the elder’s surrogate designations under chapter 765; trusts in which the elder is a grantor, fiduciary, or beneficiary; or other similar financially focused matters.
(c) “Elder” means a person 60 years of age or older who is alleged to be suffering from the infirmities of aging as manifested by a physical, a mental, or an emotional dysfunction to the extent that the elder’s ability to provide adequately for the protection or care of his or her own person or property is impaired.
(d) “Eldercaring coordination” means an elder-focused dispute resolution process during which an eldercaring coordinator assists an elder, legally authorized decisionmakers, and others who participate by court order or by invitation of the eldercaring coordinator in resolving disputes regarding the care and safety of an elder by:
1. Facilitating more effective communication and negotiation and the development of problem-solving skills.
2. Providing education about eldercare resources.
3. Facilitating the creation, modification, or implementation of an eldercaring plan and reassessing it as necessary to reach a resolution of ongoing disputes concerning the care and safety of the elder.
4. Making recommendations for the resolution of disputes concerning the care and safety of the elder.
5. With the prior approval of the parties to an action or of the court, making limited decisions within the scope of the court’s order of referral.
(e) “Eldercaring coordination communication” means an oral or written statement, or nonverbal conduct intended to make an assertion, by, between, or among the parties, participants, or eldercaring coordinator made during the course of eldercaring coordination activity, or before an eldercaring coordination activity if made in furtherance of eldercaring coordination. The term does not include statements made during eldercaring coordination which involve the commission of a crime; the intent to commit a crime; or ongoing abuse, exploitation, or neglect of a child or vulnerable adult.
(f) “Eldercaring coordinator” means an impartial third person who is appointed by the court or designated by the parties and who meets the requirements of subsection (5). The role of the eldercaring coordinator is to assist parties through eldercaring coordination in a manner that respects the elder’s need for autonomy and safety.
(g) “Eldercaring plan” means a continually reassessed plan for the items, tasks, or responsibilities needed to provide for the care and safety of an elder which is modified throughout eldercaring coordination to meet the changing needs of the elder and which takes into consideration the preferences and wishes of the elder. The plan is not a legally enforceable document, but is meant for use by the parties and participants.
(h) “Good cause” means a finding that the eldercaring coordinator:
1. Is not fulfilling the duties and obligations of the position;
2. Has failed to comply with any order of the court, unless the order has been superseded on appeal;
3. Has conflicting or adverse interests that affect his or her impartiality;
4. Has engaged in circumstances that compromise the integrity of eldercaring coordination; or
5. Has had a disqualifying event occur.
The term does not include a party’s disagreement with the eldercaring coordinator’s methods or procedures.
(i) “Legally authorized decisionmaker” means an individual designated, either by the elder or by the court, pursuant to chapter 709, chapter 744, chapter 747, or chapter 765 who has the authority to make specific decisions on behalf of the elder who is the subject of an action.
(j) “Participant” means an individual who is not a party who joins eldercaring coordination by invitation of or with the consent of the eldercaring coordinator but who has not filed a pleading in the action from which the case was referred to eldercaring coordination.
(k) “Party” includes the elder who is the subject of an action and any other individual over whom the court has jurisdiction in the current case.
(3) REFERRAL.—
(a) Upon agreement of the parties to the action, the court’s own motion, or the motion of a party to the action, the court may appoint an eldercaring coordinator and refer the parties to eldercaring coordination to assist in the resolution of disputes concerning the care and safety of the elder who is the subject of an action.
(b) The court may not refer a party who has a history of domestic violence or exploitation of an elderly person to eldercaring coordination unless the elder and other parties in the action consent to such referral.
1. The court shall offer each party an opportunity to consult with an attorney or a domestic violence advocate before accepting consent to such referral. The court shall determine whether each party has given his or her consent freely and voluntarily.
2. The court shall consider whether a party has committed an act of exploitation as defined in s. 415.102, exploitation of an elderly person or disabled adult as defined in s. 825.103(1), or domestic violence as defined in s. 741.28 against another party or any member of another party’s family; engaged in a pattern of behaviors that exert power and control over another party and that may compromise another party’s ability to negotiate a fair result; or engaged in behavior that leads another party to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence. The court shall consider and evaluate all relevant factors, including, but not limited to, the factors specified in s. 741.30(6)(b).
3. If a party has a history of domestic violence or exploitation of an elderly person, the court must order safeguards to protect the safety of the participants and the elder and the elder’s property, including, but not limited to, adherence to all provisions of an injunction for protection or conditions of bail, probation, or a sentence arising from criminal proceedings.
(4) COURT APPOINTMENT.—
(a) A court appointment of an eldercaring coordinator is for a term of up to 2 years, and the court shall conduct review hearings intermittently to determine whether the term should be concluded or extended. Appointments conclude upon expiration of the term or upon discharge by the court, whichever occurs earlier.
(b) The order of appointment by the court shall define the scope of the eldercaring coordinator’s authority under the appointment in the action, consistent with this section.
(c) The order shall specify that, notwithstanding the intermittent review hearings under paragraph (a), a party may move the court at any time during the period of appointment for termination of the appointment. Upon the filing of such a motion, the court shall timely conduct a hearing to determine whether to terminate the appointment. Until the court has ruled on the motion, the eldercaring coordination process shall continue. In making the determination, the court shall consider at a minimum:
1. The efforts and progress of eldercaring coordination in the action to date;
2. The preference of the elder, if ascertainable; and
3. Whether continuation of the appointment is in the best interest of the elder.
(5) QUALIFICATIONS FOR ELDERCARING COORDINATORS.—
(a) The court shall appoint qualified eldercaring coordinators who:
1. Meet one of the following professional requirements:
a. Are licensed as a mental health professional under chapter 491 and hold at least a master’s degree in the professional field of practice;
b. Are licensed as a psychologist under chapter 490;
c. Are licensed as a physician under chapter 458 or chapter 459;
d. Are licensed as a nurse under chapter 464 and hold at least a master’s degree;
e. Are certified by the Florida Supreme Court as a family mediator and hold at least a master’s degree;
f. Are a member in good standing of The Florida Bar; or
g. Are a professional guardian as defined in s. 744.102(17) and hold at least a master’s degree.
2. Have completed all of the following:
a. Three years of postlicensure or postcertification practice;
b. A family mediation training program certified by the Florida Supreme Court; and
c. An eldercaring coordinator training program certified by the Florida Supreme Court. The training must total at least 44 hours and must include advanced tactics for dispute resolution of issues related to aging, illness, incapacity, or other vulnerabilities associated with elders, as well as elder, guardianship, and incapacity law and procedures and less restrictive alternatives to guardianship; phases of eldercaring coordination and the role and functions of an eldercaring coordinator; the elder’s role within eldercaring coordination; family dynamics related to eldercaring coordination; eldercaring coordination skills and techniques; multicultural competence and its use in eldercaring coordination; at least 6 hours of the implications of elder abuse, neglect, and exploitation and other safety issues pertinent to the training; at least 4 hours of ethical considerations pertaining to the training; use of technology within eldercaring coordination; and court-specific eldercaring coordination procedures. Pending certification of a training program by the Florida Supreme Court, the eldercaring coordinator must document completion of training that satisfies the hours and the elements prescribed in this sub-subparagraph.
3. Have successfully passed a Level 2 background screening as provided in s. 435.04(2) and (3) or are exempt from disqualification under s. 435.07. The prospective eldercaring coordinator must submit a full set of fingerprints to the court or to a vendor, entity, or agency authorized by s. 943.053(13). The court, vendor, entity, or agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for national processing. The prospective eldercaring coordinator shall pay the fees for state and federal fingerprint processing. The state cost for fingerprint processing shall be as provided in s. 943.053(3)(e) for records provided to persons or entities other than those specified as exceptions therein.
4. Have not been a respondent in a final order granting an injunction for protection against domestic, dating, sexual, or repeat violence or stalking or exploitation of an elder or a disabled person.
5. Have met any additional qualifications the court may require to address issues specific to the parties.
(b) A qualified eldercaring coordinator must be in good standing or in clear and active status with all professional licensing authorities or certification boards to which the eldercaring coordinator is subject.
(6) DISQUALIFICATIONS AND REMOVAL OF ELDERCARING COORDINATORS.—
(a) An eldercaring coordinator must resign and immediately report to the court if he or she no longer meets the minimum qualifications or if any of the disqualifying circumstances occurs.
(b) The court shall remove an eldercaring coordinator upon the eldercaring coordinator’s resignation or disqualification or upon a finding of good cause shown based on the court’s own motion or a party’s motion.
(c) Upon the court’s own motion or upon a party’s motion, the court may suspend the authority of an eldercaring coordinator pending a hearing on the motion for removal. Notice of hearing on removal must be timely served on the eldercaring coordinator and all parties.
(d) If a motion was made in bad faith, a court may, in addition to any other remedy authorized by law, award reasonable attorney fees and costs to a party or an eldercaring coordinator who successfully challenges a motion for removal.
(7) SUCCESSOR ELDERCARING COORDINATORS.—If an eldercaring coordinator resigns, is removed, or is suspended from an appointment, the court shall appoint a successor qualified eldercaring coordinator who is agreed to by all parties or, if the parties do not reach agreement on a successor, another qualified eldercaring coordinator to serve for the remainder of the original term.
(8) FEES AND COSTS.—The eldercaring coordinator’s fees shall be paid in equal portions by each party referred to the eldercaring coordination process by the court. The order of referral shall specify which parties are ordered to the process and the percentage of the eldercaring coordinator’s fees that each shall pay. The court may determine the allocation among the parties of fees and costs for eldercaring coordination and may make an unequal allocation based on the financial circumstances of each party, including the elder.
(a) A party who is asserting that he or she is unable to pay the eldercaring coordination fees and costs must complete a financial affidavit form approved by the presiding court. The court shall consider the party’s financial circumstances, including income; assets; liabilities; financial obligations; and resources, including, but not limited to, whether the party can receive or is receiving trust benefits, whether the party is represented by and paying a lawyer, and whether paying the fees and costs of eldercaring coordination would create a substantial hardship.
(b) If a court finds that a party is indigent based upon the criteria prescribed in s. 57.082, the court may not order the party to eldercaring coordination unless funds are available to pay the indigent party’s allocated portion of the eldercaring coordination fees and costs, which may include funds provided for that purpose by one or more nonindigent parties who consent to paying such fees and costs, or unless insurance coverage or reduced or pro bono services are available to pay all or a portion of such fees and costs. If financial assistance, such as health insurance or eldercaring coordination grants, is available, such assistance must be taken into consideration by the court in determining the financial abilities of the parties.
(9) CONFIDENTIALITY; PRIVILEGE; EXCEPTIONS.—
(a) Except as provided in this subsection, all eldercaring coordination communications are confidential. An eldercaring coordination party, participant, or eldercaring coordinator may not disclose an eldercaring coordination communication to a person other than another eldercaring coordination party, participant, or eldercaring coordinator, or a party’s or participant’s counsel. A violation of this subsection may be remedied as provided in paragraph (g). If the eldercaring coordination is court ordered, a violation of this subsection may also subject the eldercaring coordination participant to sanctions by the court, including, but not limited to, costs, attorney fees and costs, and eldercaring coordinator’s fees and costs.
(b) An eldercaring coordination party, participant, or eldercaring coordinator has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding eldercaring coordination communications.
(c) Notwithstanding paragraphs (a) and (b), there is no confidentiality or privilege attached to any signed written agreement reached during eldercaring coordination, unless the parties agree otherwise, or to any eldercaring coordination communication:
1. Necessary to identify, authenticate, confirm, or deny a written and signed agreement entered into by the parties during eldercaring coordination.
2. Necessary to identify an issue for resolution by the court, including to support a motion to terminate eldercaring coordination, without otherwise disclosing communications made by any party, participant, or the eldercaring coordinator.
3. Limited to the subject of a party’s compliance with the order of referral to eldercaring coordination, orders for psychological evaluation, court orders or health care provider recommendations for counseling, or court orders for substance abuse testing or treatment.
4. Necessary to determine the qualifications of an eldercaring coordinator or to determine the immunity and liability of an eldercaring coordinator who has acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard for the rights, safety, or property of the parties pursuant to subsection (11).
5. The parties agree may be disclosed or for which privilege against disclosure has been waived by all parties.
6. Made in the event the eldercaring coordinator needs to contact persons outside of the eldercaring coordination process to give or obtain information that furthers the eldercaring coordination process.
7. That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report.
8. Necessary to protect any person from future acts that would constitute domestic violence under chapter 741; child abuse, neglect, or abandonment under chapter 39; or abuse, neglect, or exploitation of an elderly or disabled adult under chapter 415 or chapter 825, or are necessary in an investigation conducted under s. 744.2004 or a review conducted under s. 744.368(5).
9. Offered to report, prove, or disprove professional misconduct alleged to have occurred during eldercaring coordination, solely for the internal use of the body conducting the investigation of such misconduct.
10. Offered to report, prove, or disprove professional malpractice alleged to have occurred during eldercaring coordination solely for the professional malpractice proceeding.
11. Willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.
(d) An eldercaring coordination communication disclosed under any provision of subparagraph (c)1., subparagraph (c)2., subparagraph (c)5., subparagraph (c)8., or subparagraph (c)9. is confidential and is not discoverable or admissible for any other purpose, unless otherwise permitted by this section.
(e) Information that is otherwise admissible or discoverable does not become inadmissible or protected from discovery by reason of its disclosure or use in eldercaring coordination.
(f) A party that discloses or makes a representation about a privileged eldercaring coordination communication waives that privilege, but only to the extent necessary for the other party or parties to respond to the disclosure or representation.
(g)1. An eldercaring coordination party or participant who knowingly and willfully discloses an eldercaring coordination communication in violation of this subsection, upon application by any party to a court of competent jurisdiction, is subject to remedies, including:
a. Equitable relief.
b. Compensatory damages.
c. Contribution to the other party’s or parties’ attorney fees and costs, the other party’s or parties’ portion of the eldercaring coordinator fees, and the other party’s or parties’ portion of the costs incurred in the eldercaring coordination process.
d. Reasonable attorney fees and costs incurred in the application for remedies under this subsection.
2. Notwithstanding any other law, an application for relief filed under this paragraph may not be commenced later than 2 years after the date on which the party had a reasonable opportunity to discover the breach of confidentiality, but in no case more than 4 years after the breach.
3. An eldercaring coordination party or participant is not subject to a civil action under this paragraph for lawful compliance with s. 119.07.
(10) EMERGENCY REPORTING TO THE COURT.—
(a) An eldercaring coordinator must immediately inform the court by affidavit or verified report, without notice to the parties, if:
1. The eldercaring coordinator has made or will make a report pursuant to chapter 39 or chapter 415; or
2. A party, including someone acting on a party’s behalf, is threatening or is believed to be planning to commit the offense of kidnapping, as defined in s. 787.01(1), upon an elder, or wrongfully removes or is removing the elder from the jurisdiction of the court without prior court approval or compliance with the requirements of s. 744.1098. If the eldercaring coordinator suspects that a party or family member has relocated an elder within this state to protect the elder from a domestic violence situation, the eldercaring coordinator may not disclose the location of the elder unless required by court order.
(b) An eldercaring coordinator shall immediately inform the court by affidavit or verified report and serve a copy of such affidavit or report on each party upon learning that a party is the subject of a final order or injunction of protection against domestic violence or exploitation of an elderly person or has been arrested for an act of domestic violence or exploitation of an elderly person.
(11) IMMUNITY FROM AND LIMITATION OF LIABILITY.—
(a) A person who is appointed or employed to assist the body designated to perform duties relating to disciplinary proceedings involving eldercaring coordinators has absolute immunity from liability arising from the performance of his or her duties while acting within the scope of his or her appointed functions or duties of employment.
(b) An eldercaring coordinator who is appointed by the court is not liable for civil damages for any act or omission within the scope of his or her duties under an order of referral unless such person acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard for the rights, safety, or property of the parties.
(12) MINIMUM STANDARDS AND PROCEDURES.—The Florida Supreme Court shall establish minimum standards and procedures for the qualification, ethical conduct, discipline, and training and education of eldercaring coordinators who serve under this section. Pending establishment of minimum standards and procedures for the discipline of eldercaring coordinators, the order of referral by the court may address procedures governing complaints against the appointed eldercaring coordinator consistent with this section. The Florida Supreme Court may appoint or employ such personnel as are necessary to assist the court in exercising its powers and performing its duties under this section.
History.—s. 1, ch. 2021-67.