HB 7019

CS

CHAMBER ACTION

1	The Judiciary Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to mediation; amending s. 44.1011, F.S.;
7	revising, creating, and deleting definitions; creating s.
8	44.1015, F.S.; providing standards for conduct of
9	mediation; providing for the role of the mediator and
10	counsel in specified mediations; amending s. 44.102, F.S.;
11	requiring referral of certain cases to mediation;
12	prohibiting certain cases from being referred to
13	mediation; requiring the Supreme Court to maintain a list
14	of certified mediators; amending s. 44.108, F.S.;
15	exempting certain parties from mediation fees in certain
16	cases; amending s. 61.183, F.S.; requiring mediation in
17	certain family law cases; providing an effective date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1.  Subsection (2) of section 44.1011, Florida
22	Statutes, is amended to read:
23	44.1011  Definitions.--As used in this chapter:
24	(2)  "Mediation" means a process whereby a neutral third
25	person called a mediator acts to encourage and facilitate the
26	resolution of a dispute between two or more parties. It is an
27	informal and nonadversarial process in which decisionmaking
28	authority rests with the parties with the objective of helping
29	the disputing parties reach a mutually acceptable and voluntary
30	agreement. In mediation, decisionmaking authority rests with the
31	parties. The role of the mediator includes, but is not limited
32	to, assisting the parties in identifying issues, fostering joint
33	problem solving, and exploring settlement alternatives.
34	"Mediation" includes:
35	(a)  "Appellate court mediation," which means mediation
36	that occurs during the pendency of an appeal of a civil case.
37	(b)  "Circuit court mediation," which means mediation of
38	civil cases, other than unified family court matters, in circuit
39	court. If a party is represented by counsel, the counsel of
40	record must appear unless stipulated to by the parties or
41	otherwise ordered by the court.
42	(c)  "County court mediation," which means mediation of
43	civil cases within the jurisdiction of county courts, including
44	small claims. Negotiations in county court mediation are
45	primarily conducted by the parties. Counsel for each party may
46	participate. However, presence of counsel is not required.
47	(d)  "Unified family court mediation," which means
48	mediation of any of the following circuit matters or any
49	combination thereof:
50	1.  Dissolution of marriage.
51	2.  Division and distribution of property arising out of a
52	dissolution of marriage.
53	3.  Annulment.
54	4.  Support unconnected with dissolution of marriage.
55	5.  Paternity.
56	6.  Child support.
57	7.  The Uniform Reciprocal Enforcement of Support Act and
58	the Uniform Interstate Family Support Act.
59	8.  Custodial care of and access to children.
60	9.  Adoption.
61	10.  Name changes.
62	11.  Declaratory judgment actions related to premarital,
63	marital, or postmarital agreements.
64	12.  Civil domestic, repeat, sexual, or dating violence
65	injunctions.
66	13.  Child dependency.
67	14.  Termination of parental rights.
68	15.  Juvenile delinquency.
69	16.  Emancipation of a minor.
70	17.  Children in need of services.
71	18.  Families in need of services.
72	19.  Truancy.
73	20.  Modification and enforcement of orders entered in
74	matters listed in this paragraph.
75	(d)  "Family mediation" which means mediation of family
76	matters, including married and unmarried persons, before and
77	after judgments involving dissolution of marriage; property
78	division; shared or sole parental responsibility; or child
79	support, custody, and visitation involving emotional or
80	financial considerations not usually present in other circuit
81	civil cases. Negotiations in family mediation are primarily
82	conducted by the parties. Counsel for each party may attend the
83	mediation conference and privately communicate with their
84	clients. However, presence of counsel is not required, and, in
85	the discretion of the mediator, and with the agreement of the
86	parties, mediation may proceed in the absence of counsel unless
87	otherwise ordered by the court.
88	(e)  "Dependency or in need of services mediation," which
89	means mediation of dependency, child in need of services, or
90	family in need of services matters. Negotiations in dependency
91	or in need of services mediation are primarily conducted by the
92	parties. Counsel for each party may attend the mediation
93	conference and privately communicate with their clients.
94	However, presence of counsel is not required and, in the
95	discretion of the mediator and with the agreement of the
96	parties, mediation may proceed in the absence of counsel unless
97	otherwise ordered by the court.
98	Section 2.  Section 44.1015, Florida Statutes, is created
99	to read:
100	44.1015  Conduct of mediation.--
101	(1)  The role of the mediator includes, but is not limited
102	to, assisting the parties in identifying issues, fostering joint
103	problem solving, and exploring settlement alternatives.
104	(2)  Legal counsel may be involved in mediation as follows:
105	(a)  In circuit court mediation, if a party is represented
106	by counsel, the counsel of record must appear unless stipulated
107	to by the parties or otherwise ordered by the court.
108	(b)  In unified family court mediation, negotiations are
109	primarily conducted by the parties. Counsel for each party may
110	attend the mediation conference and privately communicate with
111	his or her clients. However, in the discretion of the mediator,
112	and with the agreement of the parties, mediation may proceed in
113	the absence of counsel unless otherwise ordered by the court.
114	(c)  In county court mediation, negotiations are primarily
115	conducted by the parties. Counsel for each party may
116	participate. However, presence of counsel is not required in
117	actions under the Florida Small Claims Rules.
118	Section 3.  Subsections (2) and (4) of section 44.102,
119	Florida Statutes, are amended to read:
120	44.102  Court-ordered mediation.--
121	(2)  A court, under rules adopted by the Supreme Court:
122	(a)  Shall Must, upon request of one party, refer to
123	mediation any filed civil action for monetary damages, provided
124	the requesting party is willing and able to pay the costs of the
125	mediation or the costs can be equitably divided between the
126	parties, unless:
127	1.  The action is a landlord and tenant dispute that does
128	not include a claim for personal injury.
129	2.  The action is filed for the purpose of collecting a
130	debt.
131	3.  The action is a claim of medical malpractice.
132	4.  The action is governed by the Florida Small Claims
133	Rules.
134	5.  The court determines that the action is proper for
135	referral to nonbinding arbitration under this chapter.
136	6.  The parties have agreed to binding arbitration.
137	7.  The parties have agreed to an expedited trial pursuant
138	to s. 45.075.
139	8.  The parties have agreed to voluntary trial resolution
140	pursuant to s. 44.104.
141	(b)  Shall, in circuits in which a mediation program has
142	been established, refer to mediation all or part of disputed
143	custody, visitation, or other parental responsibility issues.
144	(c)(b)  May refer to mediation all or any part of any a
145	filed case civil action for which mediation is not required
146	under this section.
147	(d)  Shall not refer to mediation, regardless of any other
148	law requiring mediation:
149	1.  Any case regarding issuance of domestic, repeat,
150	dating, or sexual violence injunctions, except to the extent
151	authorized by rules adopted by the Supreme Court; or
152	2.  Any case in which the court finds, upon motion or
153	request of a party, there has been a history of violence,
154	including, but not limited to, domestic violence, that would
155	compromise the mediation process or endanger any person's
156	safety.
157	(c)  In circuits in which a family mediation program has
158	been established and upon a court finding of a dispute, shall
159	refer to mediation all or part of custody, visitation, or other
160	parental responsibility issues as defined in s. 61.13. Upon
161	motion or request of a party, a court shall not refer any case
162	to mediation if it finds there has been a history of domestic
163	violence that would compromise the mediation process.
164	(d)  In circuits in which a dependency or in need of
165	services mediation program has been established, may refer to
166	mediation all or any portion of a matter relating to dependency
167	or to a child in need of services or a family in need of
168	services.
169	(4)  The Supreme Court chief judge of each judicial circuit
170	shall maintain a list for each circuit of mediators whom it has
171	who have been certified by the Supreme Court and who have
172	registered for appointment in that circuit.
173	(a)  Whenever possible, qualified individuals who have
174	volunteered their time to serve as mediators shall be appointed.
175	If a mediation program is funded pursuant to s. 44.108,
176	volunteer mediators shall be entitled to reimbursement pursuant
177	to s. 112.061 for all actual expenses necessitated by service as
178	a mediator.
179	(b)  Nonvolunteer mediators shall be compensated according
180	to rules adopted by the Supreme Court. If a mediation program is
181	funded pursuant to s. 44.108, a mediator may be compensated by
182	the state, the county, or by the parties.
183	Section 4.  Subsection (2) of section 44.108, Florida
184	Statutes, is amended to read:
185	44.108  Funding of mediation and arbitration.--
186	(2)  When court-ordered mediation services are provided by
187	a circuit court's mediation program, the following fees, unless
188	otherwise established in the General Appropriations Act, shall
189	be collected by the clerk of court:
190	(a)  Eighty dollars per party person per scheduled session
191	in unified family court mediation when the parties' combined
192	income is greater than $50,000, but less than $100,000 per year;
193	(b)  Forty dollars per party person per scheduled session
194	in unified family court mediation when the parties' combined
195	income is less than $50,000; or
196	(c)  Forty dollars per party person per scheduled session
197	in county court cases.
198
199	No mediation fees shall be assessed under this subsection in
200	residential eviction cases, against a party found to be
201	indigent, or for any small claims action. For a party found to
202	be indigent, no mediation fees shall be assessed under this
203	subsection in unified family court cases that are limited to one
204	or more of the following issues: child dependency, children in
205	need of services, families in need of services, juvenile
206	delinquency, or issues arising out of judicial findings in
207	relation to injunctions for protection against domestic
208	violence. Fees collected by the clerk of court pursuant to this
209	section shall be remitted to the Department of Revenue for
210	deposit into the state courts' Mediation and Arbitration Trust
211	Fund to fund court-ordered mediation. The clerk of court may
212	deduct $1 per fee assessment for processing this fee. The clerk
213	of the court shall submit to the chief judge of the circuit, no
214	later than 30 days after the end of each quarter, a report
215	specifying the amount of funds collected under this section
216	during each quarter of the fiscal year.
217	Section 5.  Subsection (1) of section 61.183, Florida
218	Statutes, is amended to read:
219	61.183  Mediation of certain contested issues.--
220	(1)  In any proceeding in which the issues of parental
221	responsibility, primary residence, visitation, or support of a
222	child are contested, the court shall may refer the parties to
223	mediation in accordance with s. 44.102 rules promulgated by the
224	Supreme Court. In Title IV-D cases, any costs, including filing
225	fees, recording fees, mediation costs, service of process fees,
226	and other expenses incurred by the clerk of the circuit court,
227	shall be assessed only against the nonprevailing obligor after
228	the court makes a determination of the nonprevailing obligor's
229	ability to pay such costs and fees.
230	Section 6.  This act shall take effect July 1, 2006.

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