Florida Senate - 2009 SB 1416 By Senator Rich 34-00422A-09 20091416__ 1 A bill to be entitled 2 An act relating to the collaborative process to 3 resolve disputes arising under part I of ch. 61 and 4 ch. 742, F.S.; providing a short title; providing the 5 purposes of the Collaborative Process Act; providing 6 definitions; tolling statutes of limitations and other 7 periods of time established by law or agreement to 8 enforce a legal or contractual right; providing for 9 confidentiality of communications made during the 10 collaborative process; providing exceptions; 11 authorizing sanctions for disclosure of confidential 12 communications; providing an effective date. 13 14 Be It Enacted by the Legislature of the State of Florida: 15 16 Section 1. Short title.—This act may be cited as the 17 “Collaborative Process Act.” 18 Section 2. Purposes of the collaborative process.—The 19 purpose of the Collaborative Process Act is to: 20 (1) Create a uniform system of practice of the 21 collaborative process in proceedings under part I of chapter 61 22 and chapter 742, Florida Statutes. 23 (2) Encourage the peaceful resolution of disputes and the 24 early settlement of pending litigation through voluntary 25 settlement procedures. 26 (3) Preserve the working relationship between parties to a 27 dispute through a nonadversarial method that reduces the 28 emotional and financial toll of litigation. 29 Section 3. Definitions.—As used in the Collaborative 30 Process Act, the term: 31 (1) “Collaborative attorney” means an attorney licensed to 32 practice law in the State of Florida by the Florida Supreme 33 Court who satisfies any training and other requirements mandated 34 by the Florida Supreme Court to enable the attorney to represent 35 clients in the collaborative process. 36 (2) “Collaborative communication” means any oral or written 37 statement or a nonverbal act that is made: 38 (a) After the parties execute a collaborative participation 39 agreement and before the collaborative process terminates or 40 final agreement is reached; and 41 (b) For the purposes of conducting, participating in, 42 continuing, or otherwise furthering the collaborative process. 43 (3) “Collaborative participation agreement” means a written 44 contract entered into pursuant to the Collaborative Process Act 45 and the requirements promulgated by the Florida Supreme Court 46 pertaining to the collaborative process. 47 (4) “Collaborative process” means a process in which 48 parties, represented by collaborative attorneys, attempt to 49 resolve a matter, subject to part I of chapter 61 or chapter 50 742, Florida Statutes, pursuant to a collaborative participation 51 agreement without court intervention. 52 (5) “Matter” means a dispute, transaction, claim, problem, 53 or issue for resolution described in a collaborative 54 participation agreement. 55 (6) “Party” means a person who enters into a collaborative 56 participation agreement and whose consent is necessary to 57 resolve a matter. 58 (7) “Person” means an individual, corporation, partnership, 59 association, governmental subdivision, agency, or any other 60 legal or commercial entity. 61 Section 4. Collaborative process; commencement; tolling of 62 time periods.— 63 (1) The collaborative process commences when the parties 64 enter into a collaborative participation agreement. The 65 initiation of a proceeding is not a prerequisite to the 66 commencement of the collaborative process. 67 (2) All time periods during which a person must enforce or 68 exercise his or her legal rights are tolled while a 69 collaborative participation agreement remains in effect. This 70 subsection applies to statutes of limitation, filing deadlines, 71 any other time limits imposed by law, and deadlines to exercise 72 contractual rights. 73 Section 5. Confidentiality; privilege; exceptions.— 74 (1) Collaborative communications are confidential, except 75 as provided in this section or agreed to in writing by the 76 parties. 77 (2) Except as provided in this section, a collaborative 78 party has a privilege to refuse to testify, and to prevent 79 another person from testifying, in a proceeding regarding a 80 collaborative communication that was made in the collaborative 81 process. 82 (3) The following collaborative communications are not 83 confidential under this section: 84 (a) A signed written agreement reached during a 85 collaborative process, unless otherwise agreed to by the 86 parties. 87 (b) A communication that must be disclosed under chapter 88 119, Florida Statutes. 89 (c) A communication regarding a plan to commit a crime, 90 conceal ongoing criminal activity, or threaten violence. 91 (d) A communication relating to information that must be 92 reported pursuant to chapter 39 or chapter 415, Florida 93 Statutes, which is disclosed solely to the entity to which such 94 information must be reported. 95 (e) A communication that is disclosed solely in a 96 professional malpractice, misconduct, or ethics proceeding. 97 (f) A communication that is disclosed solely in a 98 proceeding to enforce an agreement made during the collaborative 99 process. 100 (4) A party who discloses collaborative communications in 101 violation of this section during the collaborative process may 102 be sanctioned, as agreed by the parties. 103 (5) A party who knowingly and willfully discloses 104 collaborative communications in violation of this section after 105 the termination of the collaborative process is liable to the 106 other party for: 107 (a) Equitable relief; 108 (b) Compensatory damages; and 109 (c) Attorney's fees and costs incurred during the 110 collaborative process. 111 (6) An action to enforce subsection (5) must be initiated 112 not later than 2 years after the party had a reasonable 113 opportunity to discover the breach of confidentiality, but in no 114 case more than 4 years after the date of the breach. 115 Section 6. This act shall take effect July 1, 2009.