Senate Bill 1588c1

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



    Florida Senate - 1999                           CS for SB 1588

    By the Committee on Judiciary and Senator Grant





    308-1979A-99

  1                      A bill to be entitled

  2         An act relating to mediation; creating s.

  3         44.1021, F.S.; providing that a court may not

  4         refer a case involving domestic violence to

  5         mediation except under specified conditions;

  6         providing legislative intent; requiring a court

  7         to assess whether domestic violence is present

  8         among the parties; providing factors that the

  9         court may consider in such assessment; amending

10         ss. 44.102, 44.201, F.S.; conforming

11         provisions; clarifying application of privilege

12         of communications made in mediation; providing

13         an effective date.

14

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

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17         Section 1.  Subsections (2) and (3) of section 44.102,

18  Florida Statutes, are amended to read:

19         44.102  Court-ordered mediation.--

20         (2)  A court, under rules adopted by the Supreme Court:

21         (a)  May refer to mediation all or any part of a filed

22  civil action, except as prohibited by s. 44.1021.

23         (b)  Except as prohibited by s. 44.1021, shall refer to

24  mediation, in circuits in which a family mediation program has

25  been established and upon a court finding of a dispute, shall

26  refer to mediation all or part of custody, visitation, or

27  other parental responsibility issues as defined in s. 61.13.

28  Upon motion or request of a party, a court shall not refer any

29  case to mediation if it finds there has been a history of

30  domestic violence that would compromise the mediation process.

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    Florida Senate - 1999                           CS for SB 1588
    308-1979A-99




  1         (c)  May refer to mediation, in circuits in which a

  2  dependency or in need of services mediation program has been

  3  established, may refer to mediation all or any portion of a

  4  matter relating to dependency or to a child in need of

  5  services or a family in need of services. Upon motion or

  6  request of a party, a court shall not refer any case to

  7  mediation if it finds there has been a history of domestic

  8  violence which would compromise the mediation process.

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

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

11  prevent any person present at the proceeding from disclosing,

12  communications made during such proceeding. This privilege

13  does not negate statutory or ethical duties of any person to

14  report abuse, neglect, abandonment, or exploitation; nor does

15  it prevent a mediator from notifying law enforcement agencies,

16  the intended victim, or the intended victim's parent or

17  guardian of any violence or threats of violence occurring

18  during mediation.  All oral or written communications in a

19  mediation proceeding, other than an executed settlement

20  agreement, shall be exempt from the requirements of chapter

21  119 and shall be confidential and inadmissible as evidence in

22  any subsequent legal proceeding, unless all parties agree

23  otherwise.

24         Section 2.  Section 44.1021, Florida Statutes, is

25  created to read:

26         44.1021  Court-ordered mediation when domestic violence

27  may be present.--

28         (1)  The existence of domestic violence poses serious

29  and significant challenges to participants, mediators, and the

30  courts. Violence and the threat of violence, as well as

31  elements of domination and control by one party over another

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    Florida Senate - 1999                           CS for SB 1588
    308-1979A-99




  1  party, can endanger participants, mediators, and court

  2  personnel, as well as undermine a successful and fair

  3  mediation process. Because issues of domestic violence appear

  4  to be most prevalent in family cases, it is the intent of the

  5  Legislature that these cases receive additional screening and

  6  consideration. However, it is recognized that the same

  7  dynamics can occur in other civil cases, and thus a focus on

  8  family cases should not be interpreted to exclude other civil

  9  cases. It is the further intent of the Legislature that

10  criminal charges of domestic violence not be referred to

11  mediation.

12         (2)  Before referring or ordering a family case to

13  mediation, the court shall assess whether domestic violence is

14  or has been present among the parties. To make such an

15  assessment, the court shall require all parties to report the

16  existence of domestic violence among the parties. In addition,

17  the court may consider whether there is:

18         (a)  An injunction for protection against domestic

19  violence or repeat violence by or against any party or the

20  children of any party;

21         (b)  A criminal history of domestic violence; and

22         (c)  Further information regarding domestic violence

23  which has come to the attention of the court and would inform

24  its decision on whether the case could proceed to mediation.

25         (3)  If the court has reason to believe that domestic

26  violence is or has been present, the court shall require

27  mediation only if:

28         (a)  The mediation is not objected to by any party on

29  the grounds of domestic violence within 15 days after the

30  order of referral to mediation or 24 hours before the date

31  mediation is scheduled, whichever is earlier;

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    Florida Senate - 1999                           CS for SB 1588
    308-1979A-99




  1         (b)  The mediation will be provided by a certified

  2  mediator who is sufficiently trained in domestic violence

  3  cases;

  4         (c)  The mediator or mediation service has procedures

  5  to protect the victim from the alleged perpetrator in

  6  accordance with rules adopted by the Supreme Court; and

  7         (d)  The court has forwarded the results of its

  8  assessment to the mediator for review.

  9         Section 3.  Subsection (4) of section 44.201, Florida

10  Statutes, is amended to read:

11         44.201  Citizen Dispute Settlement Centers;

12  establishment; operation; confidentiality.--

13         (4)(a)  Each mediation session conducted by a Citizen

14  Dispute Settlement Center shall be nonjudicial and informal.

15  No adjudication, sanction, or penalty may be made or imposed

16  by the mediator or the center. It is the intent of the

17  Legislature that criminal charges of domestic violence not be

18  referred to mediation.

19         (b)  A Citizen Dispute Settlement Center may refer the

20  parties to judicial or nonjudicial supportive service

21  agencies.

22         Section 4.  This act shall take effect July 1, 1999.

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24          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
25                             SB 1588

26

27  Removes unnecessary reference to dependency cases or cases
    involving children or families in need.
28
    Revises basis for referral of certain cases to mediation to
29  allow a party the opportunity to object on the grounds of
    domestic violence within 15 days after referral or 24 hours
30  before mediation, whichever is earlier.

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