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

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