HB 1765

1	A bill to be entitled
2	An act relating to mediation alternatives to judicial
3	action; amending s. 44.102, F.S.; deleting language
4	regarding the disclosure of specified information made
5	during court-ordered mediation; amending s. 44.107, F.S.;
6	providing immunity from liability for trainees in the
7	Supreme Court's mentorship program; providing immunity
8	from liability for persons serving as mediators in
9	specified circumstances; amending s. 44.201, F.S.;
10	deleting language regarding disclosure of specified
11	information held by Citizen Dispute Resolution Centers;
12	creating ss. 44.401-44.406, F.S.; providing a popular
13	name; providing for the creation of the Mediation
14	Confidentiality and Privilege Act; providing for
15	application; providing definitions; specifying when a
16	mediation begins and ends; providing for confidentiality
17	of mediation communications; providing for a privilege;
18	providing exceptions; providing for civil remedies;
19	providing a statute of limitation; providing an exception;
20	amending s. 61.183, F.S.; deleting language regarding
21	disclosure of specified information made during cases;
22	providing an effective date.
23
24	Be It Enacted by the Legislature of the State of Florida:
25
26	Section 1.  Subsections (3) and (4) of section 44.102,
27	Florida Statutes, are amended to read:
28	44.102  Court-ordered mediation.--
29	(3)  Each party involved in a court-ordered mediation
30	proceeding has a privilege to refuse to disclose, and to prevent
31	any person present at the proceeding from disclosing,
32	communications made during such proceeding. All oral or written
33	communications in a mediation proceeding, other than an executed
34	settlement agreement, shall be exempt from the requirements of
35	chapter 119 and shall be confidential and inadmissible as
36	evidence in any subsequent legal proceeding, unless all parties
37	agree otherwise.
38	(4)  There shall be no privilege and no restriction on any
39	disclosure of communications made confidential in subsection (3)
40	in relation to disciplinary proceedings filed against mediators
41	pursuant to s. 44.106 and court rules, to the extent the
42	communication is used for the purposes of such proceedings. In
43	such cases, the disclosure of an otherwise privileged
44	communication shall be used only for the internal use of the
45	body conducting the investigation. Prior to the release of any
46	disciplinary files to the public, all references to otherwise
47	privileged communications shall be deleted from the record. When
48	an otherwise confidential communication is used in a mediator
49	disciplinary proceeding, such communication shall be
50	inadmissible as evidence in any subsequent legal proceeding.
51	"Subsequent legal proceeding" means any legal proceeding between
52	the parties to the mediation which follows the court-ordered
53	mediation.
54	Section 2.  Section 44.107, Florida Statutes, is amended to
55	read:
56	44.107  Immunity for arbitrators, and mediators, and
57	mediator trainees.--
58	(1)  Arbitrators serving An Arbitrator appointed under s.
59	44.103 or s. 44.104, mediators serving or a mediator appointed
60	under s. 44.102, and trainees fulfilling the mentorship
61	requirements for certification by the Supreme Court as a
62	mediator shall have judicial immunity in the same manner and to
63	the same extent as a judge.
64	(2)  A person serving as a mediator in any noncourt-ordered
65	mediation shall have immunity from liability arising from the
66	performance of that person's duties while acting within the
67	scope of the mediation function if such mediation is:
68	(a)  Required by statute or agency rule or order;
69	(b)  Conducted under ss. 44.401-44.406 by express agreement
70	of the mediation parties; or
71	(c)  Facilitated by a mediator certified by the Supreme
72	Court, unless the mediation parties expressly agree not to be
73	bound by ss. 44.401-44.406.
74
75	The mediator does not have immunity if he or she acts in bad
76	faith, with malicious purpose, or in a manner exhibiting wanton
77	and willful disregard of human rights, safety, or property.
78	(3)  A person serving appointed under s. 44.106 to assist
79	the Supreme Court in performing its disciplinary function shall
80	have absolute immunity from liability arising from the
81	performance of that person's duties while acting within the
82	scope of that person's appointed function.
83	Section 3.  Subsection (5) of section 44.201, Florida
84	Statutes, is amended to read:
85	44.201  Citizen Dispute Settlement Centers; establishment;
86	operation; confidentiality.--
87	(5)  Any information relating to a dispute obtained by any
88	person while performing any duties for the center from the
89	files, reports, case summaries, mediator's notes, or other
90	communications or materials, oral or written, is confidential
91	and exempt from the provisions of s. 119.07(1) and shall not be
92	publicly disclosed without the written consent of all parties to
93	the dispute. Any research or evaluation effort directed at
94	assessing program activities or performance shall protect the
95	confidentiality of such information. Each party to a Citizen
96	Dispute Settlement Center proceeding has a privilege during and
97	after those proceedings to refuse to disclose and to prevent
98	another from disclosing communications made during such
99	proceedings, whether or not the dispute was successfully
100	resolved. This subsection shall not be construed to prevent or
101	inhibit the discovery or admissibility of any information which
102	is otherwise subject to discovery or which is admissible under
103	applicable law or rules of court, except that any conduct or
104	statements made during such mediation sessions or in
105	negotiations concerning such sessions shall be inadmissible in
106	any judicial proceeding.
107	Section 4.  Sections 44.401, 44.402, 44.403, 44.404,
108	44.405, and 44.406, Florida Statutes, are created to read:
109	44.401  Mediation Confidentiality and Privilege
110	Act.--Sections 44.401-44.406 may be known by the popular name
111	Sections 44.401-44.406 may be known by the popular name the
112	"Mediation Confidentiality and Privilege Act."
113	44.402  Scope.--
114	(1)  Except as otherwise provided, ss. 44.401-44.406 apply
115	to any mediation:
116	(a)  Required by statute, court rule, agency rule or order,
117	oral or written case-specific court order, or court
118	administrative order;
119	(b)  Conducted under ss. 44.401-44.406 by express agreement
120	of the mediation parties; or
121	(c)  Facilitated by a mediator certified by the Supreme
122	Court, unless the mediation parties expressly agree not to be
123	bound by ss. 44.401-44.406.
124	(2)  Notwithstanding any other provision, the mediation
125	parties may agree in writing that any or all of s. 44.405(1), s.
126	44.405(2), or s. 44.406 will not apply to all or part of a
127	mediation proceeding.
128	44.403  Definitions.--As used in ss. 44.401-44.406, the
129	term:
130	(1)  "Mediation communication" means an oral or written
131	statement, or nonverbal conduct intended to make an assertion,
132	by or to a mediation participant made during the course of a
133	mediation, or prior to mediation if made in furtherance of a
134	mediation. The commission of a crime during a mediation is not a
135	mediation communication.
136	(2)  "Mediation participant" means a mediation party or a
137	person who attends a mediation in person or by telephone, video
138	conference, or other electronic means.
139	(3)  "Mediation party" or "party" means a person
140	participating directly, or through a designated representative,
141	in a mediation and a person who:
142	(a)  Is a named party;
143	(b)  Is a real party in interest; or
144	(c)  Would be a named party or real party in interest if an
145	action relating to the subject matter of the mediation were
146	brought in a court of law.
147	(4)  "Mediator" means a neutral, impartial third person who
148	facilitates the mediation process. The mediator's role is to
149	reduce obstacles to communication, assist in identifying issues,
150	explore alternatives, and otherwise facilitate voluntary
151	agreements to resolve disputes, without prescribing what the
152	resolution must be.
153	(5)  "Subsequent proceeding" means an adjudicative process
154	that follows a mediation, including related discovery.
155	44.404  Mediation; duration.--
156	(1)  A court-ordered mediation begins when an order is
157	issued by the court and ends when:
158	(a)  A partial or complete settlement agreement, intended
159	to resolve the dispute and end the mediation, is signed by the
160	parties and, if required by law, approved by the court;
161	(b)  The mediator declares an impasse by reporting to the
162	court or the parties the lack of an agreement;
163	(c)  The mediation is terminated by court order, court
164	rule, or applicable law; or
165	(d)  The mediation is terminated, after party compliance
166	with the court order to appear at mediation, by:
167	1.  Agreement of the parties; or
168	2.  One party giving written notice to all other parties in
169	a multiparty mediation that the one party is terminating its
170	participation in the mediation. Under this circumstance, the
171	termination is effective only for the withdrawing party.
172	(2)  In all other mediations, the mediation begins when the
173	parties agree to mediate or as required by agency rule, agency
174	order, or statute, whichever occurs earlier, and ends when:
175	(a)  A partial or complete settlement agreement, intended
176	to resolve the dispute and end the mediation, is signed by the
177	parties and, if required by law, approved by the court;
178	(b)  The mediator declares an impasse to the parties;
179	(c)  The mediation is terminated by court order, court
180	rule, or applicable law; or
181	(d)  The mediation is terminated by:
182	1.  Agreement of the parties; or
183	2.  One party giving notice to all other parties in a
184	multiparty mediation that the one party is terminating its
185	participation in the mediation. Under this circumstance, the
186	termination is effective only for the withdrawing party.
187	44.405  Confidentiality; privilege; exceptions.--
188	(1)  Except as provided in this section, all mediation
189	communications shall be confidential. A mediation participant
190	shall not disclose a mediation communication to a person other
191	than another mediation participant or a participant's counsel. A
192	violation of this section may be remedied as provided by s.
193	44.406. If the mediation is court ordered, a violation of this
194	section may also subject the mediation participant to sanctions
195	by the court, including, but not limited to, costs, attorney's
196	fees, and mediator's fees.
197	(2)  A mediation party has a privilege to refuse to testify
198	and to prevent any other person from testifying in a subsequent
199	proceeding regarding mediation communications.
200	(3)  If, in a mediation involving more than two parties, a
201	party gives written notice to the other parties that the party
202	is terminating its participation in the mediation, the party
203	giving notice shall have a privilege to refuse to testify and to
204	prevent any other person from testifying in a subsequent
205	proceeding regarding only those mediation communications that
206	occurred prior to the delivery of the written notice of
207	termination of mediation to the other parties.
208	(4)(a)  Notwithstanding subsections (1) and (2), there is
209	no confidentiality or privilege attached to a signed written
210	agreement reached during a mediation, unless the parties agree
211	otherwise, or for any mediation communication:
212	1.  For which the confidentiality or privilege against
213	disclosure has been waived by all parties;
214	2.  That is willfully used to plan a crime, commit or
215	attempt to commit a crime, conceal ongoing criminal activity, or
216	threaten violence;
217	3.  That requires a mandatory report pursuant to chapter 39
218	or chapter 415 solely for the purpose of making the mandatory
219	report to the entity requiring the report;
220	4.  Offered to report, prove, or disprove professional
221	malpractice, solely for the purpose of the professional
222	malpractice proceeding;
223	5.  Offered for the limited purpose of establishing or
224	refuting legally recognized grounds for voiding or reforming a
225	settlement agreement reached during a mediation; or
226	6.  Offered to report, prove, or disprove professional
227	misconduct, solely for the internal use of the body conducting
228	the investigation of the conduct.
229	(b)  A mediation communication disclosed under any
230	provision of subparagraphs (4)(a)3., (4)(a)4., (4)(a)5., or
231	(4)(a)6. remains confidential and is not discoverable or
232	admissible for any other purpose, unless otherwise permitted by
233	this section.
234	(5)  Information that is otherwise admissible or subject to
235	discovery does not become inadmissible or protected from
236	discovery by reason of its disclosure or use in mediation.
237	(6)  A party that discloses or makes a representation about
238	a privileged mediation communication waives that privilege, but
239	only to the extent necessary for the other party to respond to
240	the disclosure or representation.
241	44.406  Confidentiality; civil remedies.--
242	(1)  Any mediation participant who knowingly and willfully
243	discloses a mediation communication in violation of s. 44.405
244	shall, upon application by any party to a court of competent
245	jurisdiction, be subject to remedies, including:
246	(a)  Equitable relief.
247	(b)  Compensatory damages.
248	(c)  Attorney's fees, mediator's fees, and costs incurred
249	in the mediation proceeding.
250	(d)  Reasonable attorney's fees and costs incurred in the
251	application for remedies under this section.
252	(2)  Notwithstanding any other law, an application for
253	relief filed under this section may not be commenced later than
254	2 years after the date on which the party had a reasonable
255	opportunity to discover the breach of confidentiality, but in no
256	case more than 4 years after the date of the breach.
257	(3)  A mediation participant shall not be subject to a
258	civil action under this section for lawful compliance with the
259	provisions of s. 119.07.
260	Section 5.  Subsection (3) of section 61.183, Florida
261	Statutes, is amended to read:
262	61.183  Mediation of certain contested issues.--
263	(3)  Any information from the files, reports, case
264	summaries, mediator's notes, or other communications or
265	materials, oral or written, relating to a mediation proceeding
266	pursuant to this section obtained by any person performing
267	mediation duties is confidential and exempt from the provisions
268	of s. 119.07(1) and may not be disclosed without the written
269	consent of all parties to the proceeding. Any research or
270	evaluation effort directed at assessing program activities or
271	performance must protect the confidentiality of such
272	information. Each party to a mediation proceeding has a
273	privilege during and after the proceeding to refuse to disclose
274	and to prevent another from disclosing communications made
275	during the proceeding, whether or not the contested issues are
276	successfully resolved. This subsection shall not be construed to
277	prevent or inhibit the discovery or admissibility of any
278	information that is otherwise subject to discovery or that is
279	admissible under applicable law or rules of court, except that
280	any conduct or statements made during a mediation proceeding or
281	in negotiations concerning the proceeding are inadmissible in
282	any judicial proceeding.
283	Section 6.  This act shall take effect July 1, 2004.

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