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.