HB 1765

CS

CHAMBER ACTION

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

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