Senate Bill sb2188e1

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    CS for CS for SB 2188                    First Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to mediation; amending s.

  3         44.1011, F.S.; revising, creating, and deleting

  4         definitions; creating s. 44.1015, F.S.;

  5         providing standards for conduct of mediation;

  6         providing for the role of the mediator and

  7         counsel in specified mediations; amending s.

  8         44.102, F.S.; requiring referral of certain

  9         cases to mediation; prohibiting certain cases

10         from being referred to mediation; requiring the

11         Supreme Court to maintain a list of certified

12         mediators; amending s. 44.108, F.S.; providing

13         that no mediation fee is required in certain

14         cases; amending s. 61.183, F.S.; requiring the

15         court in certain family law cases to make

16         mediation referrals in accordance with the

17         statute governing court-ordered mediation;

18         providing an effective date.

19  

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

21  

22         Section 1.  Subsection (2) of section 44.1011, Florida

23  Statutes, is amended to read:

24         44.1011  Definitions.--As used in this chapter:

25         (2)  "Mediation" means a process whereby a neutral

26  third person called a mediator acts to encourage and

27  facilitate the resolution of a dispute between two or more

28  parties. It is an informal and nonadversarial process in which

29  decisionmaking authority rests with the parties with the

30  objective of helping the disputing parties reach a mutually

31  acceptable and voluntary agreement. In mediation,


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1  decisionmaking authority rests with the parties. The role of

 2  the mediator includes, but is not limited to, assisting the

 3  parties in identifying issues, fostering joint problem

 4  solving, and exploring settlement alternatives. "Mediation"

 5  includes:

 6         (a)  "Appellate court mediation," which means mediation

 7  that occurs during the pendency of an appeal of a civil case.

 8         (b)  "Circuit court mediation," which means mediation

 9  of civil cases, other than unified family court matters, in

10  circuit court. If a party is represented by counsel, the

11  counsel of record must appear unless stipulated to by the

12  parties or otherwise ordered by the court.

13         (c)  "County court mediation," which means mediation of

14  civil cases within the jurisdiction of county courts,

15  including small claims. Negotiations in county court mediation

16  are primarily conducted by the parties. Counsel for each party

17  may participate. However, presence of counsel is not required.

18         (d)  "Unified family court mediation," which means

19  mediation of any of the following circuit matters or any

20  combination thereof:

21         1.  Dissolution of marriage.

22         2.  Division and distribution of property arising out

23  of a dissolution of marriage.

24         3.  Annulment.

25         4.  Support unconnected with dissolution of marriage.

26         5.  Paternity.

27         6.  Child support.

28         7.  The Uniform Reciprocal Enforcement of Support Act

29  and the Uniform Interstate Family Support Act.

30         8.  Custodial care of and access to children.

31         9.  Adoption.


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1         10.  Name changes.

 2         11.  Declaratory judgment actions related to

 3  premarital, marital, or postmarital agreements.

 4         12.  Civil domestic, repeat, sexual, or dating violence

 5  injunctions.

 6         13.  Child dependency.

 7         14.  Termination of parental rights.

 8         15.  Juvenile delinquency.

 9         16.  Emancipation of a minor.

10         17.  Children in need of services.

11         18.  Families in need of services.

12         19.  Truancy.

13         20.  Alimony.

14         21.  Modification and enforcement of orders entered in

15  matters listed in this paragraph.

16         (d)  "Family mediation" which means mediation of family

17  matters, including married and unmarried persons, before and

18  after judgments involving dissolution of marriage; property

19  division; shared or sole parental responsibility; or child

20  support, custody, and visitation involving emotional or

21  financial considerations not usually present in other circuit

22  civil cases. Negotiations in family mediation are primarily

23  conducted by the parties. Counsel for each party may attend

24  the mediation conference and privately communicate with their

25  clients. However, presence of counsel is not required, and, in

26  the discretion of the mediator, and with the agreement of the

27  parties, mediation may proceed in the absence of counsel

28  unless otherwise ordered by the court.

29         (e)  "Dependency or in need of services mediation,"

30  which means mediation of dependency, child in need of

31  services, or family in need of services matters. Negotiations


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1  in dependency or in need of services mediation are primarily

 2  conducted by the parties. Counsel for each party may attend

 3  the mediation conference and privately communicate with their

 4  clients. However, presence of counsel is not required and, in

 5  the discretion of the mediator and with the agreement of the

 6  parties, mediation may proceed in the absence of counsel

 7  unless otherwise ordered by the court.

 8         Section 2.  Section 44.1015, Florida Statutes, is

 9  created to read:

10         44.1015  Conduct of mediation.--

11         (1)  The role of the mediator includes, but is not

12  limited to, assisting the parties in identifying issues,

13  fostering joint problem solving, and exploring settlement

14  alternatives.

15         (2)  Legal counsel may be involved in mediation as

16  follows:

17         (a)  In circuit court mediation, if a party is

18  represented by counsel, the counsel of record must appear

19  unless stipulated to by the parties or otherwise ordered by

20  the court.

21         (b)  In unified family court mediation, negotiations

22  are primarily conducted by the parties. Counsel for each party

23  may attend the mediation conference and privately communicate

24  with his or her clients. However, in the discretion of the

25  mediator, and with the agreement of the parties, mediation may

26  proceed in the absence of counsel unless otherwise ordered by

27  the court.

28         (c)  In county court mediation, negotiations are

29  primarily conducted by the parties. If a party is represented

30  by counsel, the counsel of record must appear unless

31  stipulated to by the parties or otherwise ordered by the


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1  court.  However, presence of counsel is not required in

 2  mediations where the action is governed by the Florida Small

 3  Claims Rules.

 4         Section 3.  Subsections (2) and (4) of section 44.102,

 5  Florida Statutes, are amended to read:

 6         44.102  Court-ordered mediation.--

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

 8         (a)  Shall Must, upon request of one party, refer to

 9  mediation any filed civil action for monetary damages,

10  provided the requesting party is willing and able to pay the

11  costs of the mediation or the costs can be equitably divided

12  between the parties, unless:

13         1.  The action is a landlord and tenant dispute that

14  does not include a claim for personal injury.

15         2.  The action is filed for the purpose of collecting a

16  debt.

17         3.  The action is a claim of medical malpractice.

18         4.  The action is governed by the Florida Small Claims

19  Rules.

20         5.  The court determines that the action is proper for

21  referral to nonbinding arbitration under this chapter.

22         6.  The parties have agreed to binding arbitration.

23         7.  The parties have agreed to an expedited trial

24  pursuant to s. 45.075.

25         8.  The parties have agreed to voluntary trial

26  resolution pursuant to s. 44.104.

27         (b)  Shall, in circuits in which a mediation program

28  has been established, refer to mediation all or part of

29  disputed custody, visitation, or other parental responsibility

30  issues.

31  


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1         (c)(b)  May refer to mediation all or any part of any a

 2  filed case civil action for which mediation is not required

 3  under this section.

 4         (d)  Shall not refer to mediation, regardless of any

 5  other law requiring mediation:

 6         1.  Any case regarding issuance of domestic, repeat,

 7  dating, or sexual violence injunctions, except to the extent

 8  authorized by rules adopted by the Supreme Court; or

 9         2.  Any case in which the court finds, upon motion or

10  request of a party, there has been a history of violence,

11  including, but not limited to, domestic violence, that would

12  compromise the mediation process or endanger any person's

13  safety.

14         (c)  In circuits in which a family mediation program

15  has been established and upon a court finding of a dispute,

16  shall refer to mediation all or part of custody, visitation,

17  or other parental responsibility issues as defined in s.

18  61.13. Upon motion or request of a party, a court shall not

19  refer any case to mediation if it finds there has been a

20  history of domestic violence that would compromise the

21  mediation process.

22         (d)  In circuits in which a dependency or in need of

23  services mediation program has been established, may refer to

24  mediation all or any portion of a matter relating to

25  dependency or to a child in need of services or a family in

26  need of services.

27         (4)  The Supreme Court chief judge of each judicial

28  circuit shall maintain a list of certified mediators who have

29  been certified by the Supreme Court and who have registered

30  for appointment in that circuit.

31  


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1         (a)  Whenever possible, qualified individuals who have

 2  volunteered their time to serve as mediators shall be

 3  appointed. If a mediation program is funded pursuant to s.

 4  44.108, volunteer mediators shall be entitled to reimbursement

 5  pursuant to s. 112.061 for all actual expenses necessitated by

 6  service as a mediator.

 7         (b)  Nonvolunteer mediators shall be compensated

 8  according to rules adopted by the Supreme Court. If a

 9  mediation program is funded pursuant to s. 44.108, a mediator

10  may be compensated by the state, the county, or by the

11  parties.

12         Section 4.  Subsection (2) of section 44.108, Florida

13  Statutes, is amended to read:

14         44.108  Funding of mediation and arbitration.--

15         (2)  When court-ordered mediation services are provided

16  by a circuit court's mediation program, the following fees,

17  unless otherwise established in the General Appropriations

18  Act, shall be collected by the clerk of court:

19         (a)  Eighty dollars per party person per scheduled

20  session in unified family court mediation when the parties'

21  combined income is greater than $50,000, but less than

22  $100,000 per year;

23         (b)  Forty dollars per party person per scheduled

24  session in unified family court mediation when the parties'

25  combined income is less than $50,000; or

26         (c)  Forty dollars per party person per scheduled

27  session in county court cases.

28  

29  No mediation fees shall be assessed under this subsection in

30  residential eviction cases, against a party found to be

31  indigent, or for any small claims action. No mediation fees


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    CS for CS for SB 2188                    First Engrossed (ntc)



 1  shall be assessed under this subsection in unified family

 2  court cases that are limited to one or more of the following

 3  issues: child dependency, children in need of services,

 4  families in need of services, juvenile delinquency, or issues

 5  arising out of judicial findings in relation to injunctions

 6  for protection against domestic violence. Fees collected by

 7  the clerk of court pursuant to this section shall be remitted

 8  to the Department of Revenue for deposit into the state

 9  courts' Mediation and Arbitration Trust Fund to fund

10  court-ordered mediation. The clerk of court may deduct $1 per

11  fee assessment for processing this fee. The clerk of the court

12  shall submit to the chief judge of the circuit, no later than

13  30 days after the end of each quarter, a report specifying the

14  amount of funds collected under this section during each

15  quarter of the fiscal year.

16         Section 5.  Subsection (1) of section 61.183, Florida

17  Statutes, is amended to read:

18         61.183  Mediation of certain contested issues.--

19         (1)  In any proceeding in which the issues of parental

20  responsibility, primary residence, visitation, or support of a

21  child are contested, the court shall make referrals may refer

22  the parties to mediation in accordance with s. 44.102 rules

23  promulgated by the Supreme Court. In Title IV-D cases, any

24  costs, including filing fees, recording fees, mediation costs,

25  service of process fees, and other expenses incurred by the

26  clerk of the circuit court, shall be assessed only against the

27  nonprevailing obligor after the court makes a determination of

28  the nonprevailing obligor's ability to pay such costs and

29  fees.

30         Section 6.  This act shall take effect July 1, 2006.

31  


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