Florida Rules for Certified and Court-Appointed Mediators (1995-2000)

Florida Rules for Certified and Court-Appointed Mediators (effective dates October 5, 1995 – March 31, 2000)


PART I. MEDIATOR QUALIFICATIONS


Rule 10.010 General Qualifications


(a) County Court Mediators. For certification a mediator of county court matters must be certified as a circuit court or family mediator or:


(1) complete a minimum of 20 hours in a training program certified by the supreme court;


(2) observe a minimum of 4 county court mediation conferences conducted by a court-certified mediator and conduct 4 county court mediation conferences under the supervision and observation of a court-certified mediator; and


(3) be of good moral character.


(b) Family Mediators. For certification a mediator of family and dissolution of marriage issues must:


(1) complete a minimum of 40 hours in a family mediation training program certified by the supreme court;


(2) have a master’s degree or doctorate in social work, mental health, or behavioral or social sciences; be a physician certified to practice adult or child psychiatry; or be an attorney or a certified public accountant licensed to practice in any United States jurisdiction; and have at least 4 years practical experience in one of the aforementioned fields or have 8 years family mediation experience with a minimum of 10 mediations per year;


(3) observe 2 family mediations conducted by a certified family mediator and conduct 2 family mediations under the supervision and observation of a certified family mediator; and


(4) be of good moral character. (c) Circuit Court Mediators. For certification a mediator of circuit court matters, other than family matters, must:


(1) complete a minimum of 40 hours in a circuit court mediation training program certified by the supreme court;


(2) be a member in good standing of The Florida Bar with at least 5 years of Florida practice and be an active member of The Florida Bar within 1 year of application for certification; or be a retired trial judge from any United States jurisdiction who was a member in good standing of the bar in the state in which the judge presided for at least 5 years immediately preceding the year certification is sought;


(3) observe 2 circuit court mediations conducted by a certified circuit mediator and conduct 2 circuit mediations under the supervision and observation of a certified circuit court mediator; and


(4) be of good moral character.


(d) Dependency Mediators. For certification a mediator of dependency matters, as defined in Florida Rules for Juvenile Procedure 8.290(a) must:


(1) complete a supreme court certified dependency mediation training program as follows:


(A) 40 hours if the applicant is not a certified family mediator or is a certified family mediator who has not mediated at least 4 dependency cases; or

(B) 20 hours if the applicant is a certified family mediator who has mediated at least 4 dependency cases; and

(2) have a master’s degree or doctorate in social work, mental health, behavioral sciences or social sciences; or be a physician licensed to practice adult or child psychiatry or pediatrics; or be an attorney licensed to practice in any United States jurisdiction; and

(3) have 4 years experience in family and/or dependency issues or be a licensed mental health professional with at least 4 years practical experience or be a supreme court certified family or circuit mediator with a minimum of 20 mediations; and

(4) observe 4 dependency mediations conducted by a certified dependency mediator and conduct 2 dependency mediations under the supervision and observation of a certified dependency mediator; and

(5) be of good moral character.

(e) Special Conditions. Mediators who have been duly certified as circuit court or family mediators before July 1, 1990, shall be deemed qualified as circuit court or family mediators pursuant to these rules. Certified family mediators who have mediated a minimum of 4 dependency cases prior to July 1, 1997, shall be granted temporary certification and may continue to mediate dependency matters for no more than 1 year from the time that a training program pursuant to subdivision (d)(1)(B) is certified by the supreme court. Such mediators shall be deemed qualified to apply for certification as dependency mediators upon successful completion of the requirements of subdivision (d)(1)(B) and (d)(5) of this rule.

PART II. STANDARDS OF PROFESSIONAL CONDUCT

Rule 10.020 Preamble

(a) Scope; Purpose. These rules are intended to instill and promote public confidence in the mediation process and to be a guide to mediator conduct. As with other forms of dispute resolution, mediation must be built on public understanding and confidence. Persons serving as mediators are responsible to the parties, the public, and the courts to conduct themselves in a manner which will merit that confidence. These rules apply to all mediators who are certified or court-appointed. These rules are also intended to serve as a guide to mediators’ conduct in discharging their professional responsibilities as mediators.

(b) Mediation Defined. Mediation is a process whereby a neutral third party acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable agreement.

(c) Mediator’s Role. In mediation, decision-making authority rests with the parties. The role of the mediator includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.

(d) General Principles. Mediation is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize:

(1) the needs and interests of the participants;

(2) fairness;

(3) procedural flexibility;

(4) privacy and confidentiality;

(5) full disclosure; and

(6) self determination.

Statutory Reference: s. 44.1011, Florida Statutes

Rule 10.030 General Standards and Qualifications

(a) General. Integrity, impartiality, and professional competence are essential qualifications of any mediator. Mediators shall adhere to the highest standards of integrity, impartiality, and professional competence in rendering their professional service.

(1) A mediator shall not accept any engagement, perform any service, or undertake any act which would compromise the mediator’s integrity.

(2) A mediator shall maintain professional competence in mediation skills including, but not limited to:

(A) staying informed of and abiding by all statutes, rules, and administrative orders relevant to the practice of court-ordered mediation;

(B) if certified, continuing to meet the requirements of these rules; and

(C) regularly engaging in educational activities promoting professional growth.

(3) A mediator shall decline appointment, withdraw, or request technical assistance when the mediator decides that a case is beyond the mediator’s competence.

(b) Concurrent Standards. Nothing herein shall replace, eliminate, or render inapplicable relevant ethical standards, not in conflict with these rules, which may be imposed upon any mediator by virtue of the mediator’s professional calling.

Rule 10.040 Responsibilities to Courts

A mediator shall be candid, accurate, and fully responsive to a court concerning the mediator’s qualifications, availability, and all other pertinent matters. A mediator shall observe all administrative policies, local rules of court, applicable procedural rules, and statutes. A mediator is responsible to the judiciary for the propriety of the mediator’s activities and must observe judicial standards of fidelity and diligence. A mediator shall refrain from any activity which has the appearance of improperly influencing a court to secure placement on a roster or appointment to a case, including gifts or other inducements to court personnel.

Rule 10.050 The Mediation Process

(a) Orientation Session. On commencement of the mediation session, a mediator shall inform all parties that the process is consensual in nature, that the mediator is an impartial facilitator, and that the mediator may not impose or force any settlement on the parties.

(b) Appropriateness of Mediation. The mediator shall assist the parties in evaluating the benefits, risks, and costs of mediation and alternative methods of problem solving available to them. A mediator shall not unnecessarily or inappropriately prolong a mediation session if it becomes apparent that the case is unsuitable for mediation or if one or more of the parties is unwilling or unable to participate in the mediation process in a meaningful manner.

(c) Avoidance of Delays. A mediator shall plan a work schedule so that present and future commitments will be fulfilled in a timely manner. A mediator shall refrain from accepting appointments when it becomes apparent that completion of the mediation assignments accepted cannot be done in a timely fashion. A mediator shall perform the mediation services in a timely and expeditious fashion, avoiding delays wherever possible.

Rule 10.060 Self-Determination

(a) Parties’ Right to Decide. A mediator shall assist the parties in reaching an informed and voluntary settlement. Decisions are to be made voluntarily by the parties themselves.

(b) Prohibition of Mediator Coercion. A mediator shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party to a mediation process.

(c) Prohibition of Misrepresentation. A mediator shall not intentionally or knowingly misrepresent material facts or circumstances in the course of conducting a mediation.

(d) A Balanced Process. A mediator shall promote a balanced process and shall encourage the parties to conduct the mediation deliberations in a non-adversarial manner.

(e) Responsibility to Nonparticipating Parties. A mediator shall promote consideration of the interests of persons affected by actual or potential agreements who are not represented at the bargaining table.

(f) Mutual Respect. A mediator shall promote mutual respect among the parties throughout the mediation process.

Committee Notes

While a mediator has no duty to specifically advise a party as to the legal ramifications or consequences of a proposed agreement, there is a duty for the mediator to advise the parties of the importance of understanding such matters and giving them the opportunity to seek such advice if they desire.

Rule 10.070 Impartiality

(a) Impartiality. A mediator shall be impartial and advise all parties of any circumstances bearing on possible bias, prejudice, or impartiality. Impartiality means freedom from favoritism or bias in word, action, and appearance. Impartiality implies a commitment to aid all parties, as opposed to an individual party, in moving toward an agreement.

(1) A mediator shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity, and feasibility of proposed options for settlement.

(2) A mediator shall withdraw from mediation if the mediator believes the mediator can no longer be impartial.

(3) A mediator shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney, or any other person involved in and arising from any mediation process. (b)

Conflicts of Interest and Relationships; Required Disclosures; Prohibitions.

(1) A mediator must disclose any current, past, or possible future representation or consulting relationship with any party or attorney involved in the mediation. Disclosure must also be made of any pertinent pecuniary interest. All such disclosures shall be made as soon as practical after the mediator becomes aware of the interest or the relationship.

(2) A mediator must disclose to the parties or to the court involved any close personal relationship or other circumstance, in addition to those specifically mentioned earlier in this rule, which might reasonably raise a question as to the mediator’s impartiality. All such disclosures shall be made as soon as practical after the mediator becomes aware of the interest or the relationship.

(3) The burden of disclosure rests on the mediator. After appropriate disclosure, the mediator may serve if both parties so desire. If the mediator believes or perceives that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of the parties.

(4) A mediator shall not provide counseling or therapy to either party during the mediation process, nor shall a mediator who is a lawyer represent either party in any matter during the mediation.

(5) A mediator shall not use the mediation process to solicit, encourage, or otherwise incur future professional services with either party.

Committee Notes

The duty to disclose potential conflicts includes the fact of membership on a board of directors, full-time or part-time service as a representative or advocate, consultation work for a fee, current stock or bond ownership (other than mutual fund shares or appropriate trust arrangements), or any other pertinent form of managerial, financial or immediate family interest of the party involved. A mediator who is a member of a law firm is obliged to disclose any representational relationship the member firm may have had with the parties.

Mediators establish personal relationships with many representatives, attorneys, mediators, and other members of various professional associations. There should be no attempt to be secretive about such friendships or acquaintances, but disclosure is not necessary unless some feature of a particular relationship might reasonably appear to impair impartiality.

Rule 10.080 Confidentiality

(a) Required. A mediator shall preserve and maintain the confidentiality of all mediation proceedings except where required by law to disclose information.

(b) When Disclosure Permitted. A mediator shall keep confidential from the other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure.

(c) Records. A mediator shall maintain confidentiality in the storage and disposal of records and shall render anonymous all identifying information when materials are used for research, training, or statistical compilations.

Statutory References: s. 44.102(3), Florida Statutes s. 90.501-.510, Florida Statutes

Rule 10.090 Professional Advice

(a) Generally. A mediator shall not provide information the mediator is not qualified by training or experience to provide.

(b) Independent Legal Advice. When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.

(c) When Party Absent. If one of the parties is unable to participate in a mediation process for psychological or physical reasons, a mediator should postpone or cancel mediation until such time as all parties are able and willing to resume. Mediators may refer the parties to appropriate resources if necessary.

(d) Personal Opinion. While a mediator may point out possible outcomes of the case, under no circumstances may a mediator offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.

Committee Notes

Mediators who are attorneys should note Florida Bar Committee on Professional Ethics, formal opinion 86-8 at 1239, which states that the lawyer-mediator should “explain the risks of proceeding without independent counsel and advise the parties to consult counsel during the course of the mediation and before signing any settlement agreement that he might prepare for them.”

Rule 10.100 Fees and Expenses

(a) General Requirements. A mediator occupies a position of trust with respect to the parties and the courts. In charging for services and expenses, the mediator must be governed by the same high standards of honor and integrity that apply to all other phases of the mediator’s work. A mediator must endeavor to keep total charges for services and expenses reasonable and consistent with the nature of the case. If fees are charged, a mediator shall give a written explanation of the fees and related costs, including time and manner of payment, to the parties prior to the mediation. The explanation shall include:

(1) the basis for and amount of charges, if any, for:

(A) mediation sessions;

(B) preparation for sessions;

(C) travel time;

(D) postponement or cancellation of mediation sessions by the parties and the circumstances under which such charges will normally be assessed or waived;

(E) preparation of the parties’ written mediation agreement; and

(F) all other items billed by the mediator; and

(2) the parties’ pro rata share of mediation fees and costs if previously determined by the court or agreed to by the parties.

(b) Records. A mediator shall maintain adequate records to support charges for services and expenses and shall make an accounting to the parties or to the court upon request.

(c)

Referrals. No commissions, rebates, or similar remuneration shall be given or received by a mediator for referral of clients for mediation or related services.

(d) Contingent Fees. A mediator shall not charge a contingent fee or base a fee in any manner on the outcome of the process.

(e) Principles. A mediator should be guided by the following general principles:

(1) Time charges for a mediation session should not be in excess of actual time spent or allocated for the session.

(2) Time charges for preparation should not be in excess of actual time spent.

(3) Charges for expenses should be for expenses normally incurred and reimbursable in mediation cases and should not exceed actual expenses.

(4) When time or expenses involve 2 or more sets of parties on the same day or trip, such time and expense charges should be prorated appropriately.

(5) A mediator may specify in advance a minimum charge for a mediation session without violating this rule.

(6) When a mediator is contacted directly by the parties for mediation services, the mediator has a professional responsibility to respond to questions regarding fees by providing a copy of the basis for charges for fees and expenses.

Rule 10.110 Concluding Mediation

(a) With Agreement.

(1) Full Agreement. The mediator shall cause the terms of any agreement reached to be memorialized appropriately and discuss with the participants the process for formalization and implementation of the agreement.

(2)

Partial Agreement. When the participants reach a partial agreement, the mediator shall discuss the procedures available to resolve the remaining issues.

(3) Integrity of the Agreement. The mediator shall not knowingly assist the parties in reaching an agreement which for reasons such as fraud, duress, overreaching, the absence of bargaining ability, or unconscionability would be unenforceable.

(b) Without Agreement.

(1) Termination by Participants. The mediator shall not require a participant’s further presence at a mediation conference when it is clear the participant desires to withdraw.

(2) Termination by Mediator. If the mediator believes that the participants are unable or unwilling to participate meaningfully in the process or that an agreement is unlikely, the mediator shall suspend or terminate the mediation. The mediator should not prolong unproductive discussions that would result in emotional and monetary costs to the participants. The mediator shall not continue to provide mediation services where there is a complete absence of bargaining ability.

Committee Notes

Florida Rule of Civil Procedure 1.730(b) requires that any agreement reached be reduced to writing. Mediators have an obligation to insure this rule is complied with, but are not themselves required to write the agreement.

Rule 10.120 Training and Education

(a) Training. A mediator is obligated to acquire knowledge and training in the mediation process, including an understanding of appropriate professional ethics, standards, and responsibilities. Upon request, a mediator is required to disclose the extent and nature of the mediator’s training and experience.

(b) Continuing Education. It is important that mediators continue their professional education throughout the period of their active service. A mediator shall be personally responsible for ongoing professional growth, including participation in such continuing education as may be required by law.

(c) New Mediator Training. An experienced mediator should cooperate in the training of new mediators, including serving as a mentor.

Rule 10.130 Advertising

All advertising by a mediator must represent honestly the services to be rendered. No claims of specific results or promises which imply favoritism to one side should be made for the purpose of obtaining business. A mediator shall make only accurate statements about the mediation process, its costs and benefits, and the mediator’s qualifications.

Rule 10.140 Relationships with Other Professionals

(a) The Responsibility of the Mediator Toward Other Mediators.

(1) Relationship with Other Mediators. A mediator should not mediate any dispute that is being mediated by another mediator without first endeavoring to consult with the person or persons conducting such mediation.

(2) Co-Mediation. In those situations where more than 1 mediator is participating in a particular case, each mediator has a responsibility to keep the others informed of developments essential to a cooperative effort. The wishes of the parties supersede the interests of the mediators.

(b)

Relationship with Other Professionals.

(1) Cooperation. A mediator should respect the relationship between mediation and other professional disciplines including law, accounting, mental health, and the social services and should promote cooperation between mediators and other professionals.

(2) Prohibited Agreements. A mediator shall not participate in offering or making a partnership or employment agreement that restricts the rights of a mediator to practice after termination of the relationship, except an agreement concerning benefits upon retirement.

Rule 10.150 Advancement of Mediation

(a) Pro Bono Service. Mediators have a professional responsibility to provide competent services to persons seeking their assistance, including those unable to pay for such services. As a means of meeting the needs of the financially disadvantaged, a mediator should provide mediation services pro bono or at a reduced rate of compensation whenever appropriate.

(b) Support of Mediation. A mediator should support the advancement of mediation by encouraging and participating in research, evaluation, or other forms of professional development and public education.

PART III. DISCIPLINE

Rule 10.160 Scope and Purpose

These rules apply to all proceedings before all panels and committees of the mediator qualifications board involving the discipline or decertification of certified mediators or non-certified mediators appointed to mediate a case pursuant to Florida Rules of Civil Procedure 1.700-1.750. The purpose of these rules of discipline is to provide a means for enforcing the Florida Rules for Certified and Court-Appointed Mediators.

Rule 10.170 Privilege to Mediate Certification to mediate confers no vested right to the holder thereof, but is a conditional privilege that is revocable for cause.

Rule 10.180 Definitions

(a) Board. The mediator qualifications board.

(b) Center. The Florida Dispute Resolution Center of the Office of the State Courts Administrator.

(c) Complaint Committee. Three members of the board from the division in which a complaint against a mediator originates.

(d) Counsel. Counsel appointed by the center, at the direction of the complaint committee, responsible for presenting the complaint to the panel.

(e) Division. One of 3 standing divisions of the mediator qualifications board, established on a regional basis.

(f) Investigator. A certified mediator, or attorney, or other qualified individual appointed by the center at the direction of a complaint committee.

(g) Mediator. A person certified by the Florida Supreme Court or an individual mediating pursuant to court order.

(h) Panel. Except when used in rule 10.300, 5 members of the board from the division in which a complaint against a mediator originates.

Rule 10.190 Mediator Qualifications Board

(a) Generally. The mediator qualifications board shall be composed of 3 standing divisions that shall be located in the following regions:

(1) One division in north Florida, encompassing the First, Second, Third, Fourth, Eighth, and Fourteenth judicial circuits;

(2) One division in central Florida, encompassing the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth, and Eighteenth judicial circuits;

(3) One division in south Florida, encompassing the Eleventh, Fifteenth, Sixteenth, Seventeenth, Nineteenth, and Twentieth judicial circuits.

Other divisions may be formed by the supreme court based on need.

(b) Composition of Divisions. Each division of the board shall be composed of:

(1) three circuit or county judges;

(2) three certified county mediators;

(3) three certified circuit mediators;

(4) three certified family mediators, at least 2 of whom shall be non-lawyers; and

(5) three attorneys licensed to practice law in Florida who have a substantial trial practice and are neither certified as mediators nor judicial officers during their terms of service on the board, at least 1 of whom shall have a substantial divorce law practice.

(c) Appointment; Terms. Eligible persons shall be appointed to the board by the chief justice of the Supreme Court of Florida for a period of 4 years. The terms of the board members shall be staggered. The initial terms of the members shall be as follows:

(1) The judge members and the certified family mediators will be appointed for 2-year terms.

(2) The certified circuit mediators, the certified county mediators, and the members of The Florida Bar will be appointed for 4-year terms.

(d) Complaint Committee. Each complaint committee of the board shall be composed of 3 members. A complaint committee shall cease to exist after disposing of all assigned cases. Each complaint committee shall be composed of:

(1) one judge or attorney, who shall act as the chair of the committee;

(2) one mediator, who is certified in the area to which the complaint refers; and

(3) one other certified mediator.

(e) Panels. Each panel of the board shall be composed of 5 members. A panel shall cease to exist after disposing of all assigned cases. Each panel shall be composed of:

(1) one circuit or county judge, who shall serve as the chair;

(2) three certified mediators, at least 1 of whom shall be certified in the area to which the complaint refers; and

(3) one attorney.

(f) Panel Vice-Chair. Each panel once appointed shall elect a vice-chair. The vice-chair shall act as the chair of the panel in the absence of the chair.

Rule 10.200 Jurisdiction

(a) Complaint Committee. Each complaint committee shall have such jurisdiction and powers as are necessary to conduct the proper and speedy investigation and disposition of any complaint. The judge or attorney presiding over the complaint committee shall have the power to compel the attendance of witnesses, to take or to cause to be taken the depositions of witnesses, and to order the production of records or other documentary evidence, and the power of contempt. The complaint committee shall perform its investigatory function and have concomitant power to resolve cases prior to panel referral.

(b) Panel. Each panel shall have such jurisdiction and powers as are necessary to conduct the proper and speedy adjudication and disposition of any proceeding. The judge presiding over each panel shall have the power to compel the attendance of witnesses, to take or to cause to be taken the depositions of witnesses, to order the production of records or other documentary evidence, and the power of contempt. The panel shall perform the adjudicatory function, but shall not have any investigatory functions.

(c) Contempt. Should any witness fail, without justification, to respond to the lawful subpoena of the complaint committee or panel or, having responded, fail or refuse to answer all inquiries or to turn over evidence that has been lawfully subpoenaed, or should any person be guilty of disorderly or contemptuous conduct before any proceeding of the complaint committee or panel, a motion may be filed by the complaint committee or panel before the circuit court of the county in which the contemptuous act was committed. The motion shall allege the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of the alleged contempt of the complaint committee or panel. Such motion shall pray for the issuance of an order to show cause before the circuit court why the circuit court should not find the person in contempt of the complaint committee or panel and the person should not be punished by the court therefor. The circuit court shall issue such orders and judgments therein as the court deems appropriate.

Rule 10.210 Staff The center shall provide all staff support to the board necessary to fulfill its duties and responsibilities under these rules.

Rule 10.220 Complaint Committee Process

(a) Initiation of Complaint. Any individual wishing to make a complaint alleging that a mediator has violated one or more provisions of these rules shall do so in writing under oath. The complaint shall state with particularity the specific facts that form the basis of the complaint.

(b) Filing. The complaint shall be filed with the center, or, in the alternative, the complaint may be filed in the office of the court administrator in the circuit in which the case originated or, if not case specific, in the circuit where the alleged misconduct occurred.

(c) Referral. The complaint, if filed in the office of the court administrator, shall be referred to the center within 5 days of filing.

(d) Assignment to Committee. Upon receipt of a complaint in proper form, the center shall assign the complaint to a complaint committee within 10 days.

(e) Facial Sufficiency Determination. The complaint committee shall convene, either in person or by conference call, to determine whether the allegation(s), if true, would constitute a violation of these rules. If the committee finds the complaint to be facially insufficient, the complaint shall be dismissed without prejudice and the complainant and the mediator shall be so notified. If the complaint is found to be facially sufficient, the committee shall prepare a list of rules which may have been violated and shall submit such to the center.

(f) Service. The center shall send a copy of the list of rule violations prepared by the complaint committee, a copy of the complaint, and a copy of these rules to the mediator in question. Service on the mediator shall be made by registered or certified mail addressed to the mediator at the mediator’s place of business or residence.

(g) Response. Within 20 days of the receipt of the list of violations prepared by the complaint committee and the complaint, the mediator shall send a written, sworn response to the center by registered or certified mail. If the mediator does not respond, the allegations shall be deemed admitted.

(h) Preliminary Review. Upon review of the complaint and the mediator’s response, the complaint committee may find that no violation has occurred and dismiss the case. The complaint committee may also resolve the issue pursuant to rule 10.220(j) herein.

(i) Appointment of Investigator. The committee, after review of the complaint and response, may direct the center to appoint an investigator to assist the committee in any of its functions. Such person shall investigate the complaint and advise the committee when it meets to determine the existence of probable cause. In the alternative to appointing an investigator, the complaint committee or any member or members thereof may investigate the allegations, if so directed by the committee chair. Such investigation may include meeting with the mediator, the complainant, or both.

(j) Committee Meeting with the Mediator. Notwithstanding any other provision in this rule, at any time while the complaint committee has jurisdiction, it may meet with the complainant and the mediator in an effort to resolve the matter. This resolution may include sanctions if agreed to by the mediator. If sanctions are accepted, all relevant documentation shall be forwarded to the center.

(k) Review. If no other disposition has occurred, the complaint committee shall review the complaint, the response, and any investigative report, including any underlying documentation, to determine whether there is probable cause to believe that the alleged mediator misconduct occurred and would constitute a violation of the rules.

(l) No Probable Cause. If the complaint committee finds no probable cause, it shall dismiss the complaint and so advise the complainant and the mediator in writing.

(m) Probable Cause Found. If probable cause exists, the complaint committee may draft formal charges and forward such charges to the center for assignment to a panel. In the alternative, the complaint committee may decide not to pursue the case by filing a short and plain statement of the reason(s) for non-referral and so advise the complainant and the mediator in writing.

(n) Formal Charges and Counsel. If the complaint committee refers a complaint to the center, the complaint committee shall submit to the center formal charges which shall include a short and plain statement of the matters asserted in the complaint and references to the particular sections of the rules involved. After considering the circumstances of the complaint and the complexity of the issues to be heard, the complaint committee may direct the center to appoint a member of The Florida Bar to investigate and prosecute the complaint. Such counsel may be the investigator appointed pursuant to this rule if such person is otherwise qualified.

(o) Dismissal. Upon the filing of a stipulation of dismissal signed by the complainant and the mediator with the concurrence of the complaint committee, the action shall be dismissed.

Rule 10.230 Hearing Procedures

(a) Assignment to Panel. Upon referral of a complaint and formal charges from a complaint committee, the center shall assign the complaint and formal charges to a panel for hearing, with notice of assignment to the complainant and the mediator. No member of the complaint committee shall serve as a member of the panel.

(b) Hearing. The center shall schedule a hearing not more than 90 days nor less than 30 days from the date of notice of assignment of the matter to the panel.

(c) Dismissal. Upon the filing of a stipulation of dismissal signed by the complainant and the mediator, and with the concurrence of the panel, the action shall be dismissed.

(d) Procedures for Hearing. The procedures for hearing shall be as follows:

(1) No hearing shall be conducted without 5 panel members being present.

(2) The hearing may be conducted informally but with decorum.

(3) The rules of evidence applicable to trial of civil actions apply but are to be liberally construed.

(4) Upon a showing of good cause to the panel, testimony of any party or witness may be presented over the telephone.

(e) Right of the Mediator to Defend. A mediator shall have the right to defend against all charges and shall have the right to be represented by an attorney, to examine and cross-examine witnesses, to compel the attendance of witnesses to testify, and to compel the production of documents and other evidentiary matter through the subpoena power of the panel.

(f) Mediator Discovery. The center shall, upon written demand of a party or counsel of record, promptly furnish the following: the names and addresses of all witnesses whose testimony is expected to be offered at the hearing, together with copies of all written statements and transcripts of the testimony of such witnesses in the possession of the counsel or the center which are relevant to the subject matter of the hearing and which have not previously been furnished.

(g) Panel Discovery. The mediator or the mediator’s counsel shall, upon written demand of the counsel or the center, promptly furnish the following: the names and addresses of all witnesses whose testimony is expected to be offered at the hearing, together with copies of all written statements and transcripts of the testimony of such witnesses in the possession of the mediator or mediator’s counsel which are relevant to the subject matter of the hearing and which have not previously been furnished.

(h) Failure to Appear. Absent a showing of good cause, if the complainant fails to appear at the hearing, the panel may dismiss the action for want of prosecution.

(I) Mediator’s Absence. If the mediator fails to appear, absent a showing of good cause, the hearing shall proceed.

(j) Rehearing. If the matter is heard in the mediator’s absence, the mediator may petition for rehearing, for good cause, within 10 days of the date of the hearing.

(k) Recording. Any party shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings reported and transcribed by a court reporter at the party’s expense.

(l) Dismissal. Upon dismissal by the panel of formal charges, the panel shall promptly file a copy of the dismissal order with the center.

(m) Sanctions. If, after the hearing, a majority of the panel finds that there is clear and convincing evidence to support a violation of the rules, the panel shall impose such sanctions included in rule 10.240 as it deems appropriate.

Rule 10.240 Sanctions (a)

Generally. The panel may impose one or more of the following sanctions:

(1) Imposition of costs of the proceeding.

(2) Oral admonishment.

(3) Written reprimand.

(4) Additional training, which may include the observation of mediations.

(5) Restriction on types of cases which can be mediated in the future.

(6) Suspension for a period of up to 1 year.

(7) Decertification or, if the mediator is not certified, bar from service as a mediator under Florida Rules of Civil Procedure.

(8) Such other sanctions as are agreed to by the mediator and the panel.

(b) Failure to Comply. If there is reason to believe that the mediator failed to timely comply with any imposed sanction, a hearing shall be held before a panel convened for that purpose within 60 days of the date when the center learned of the alleged failure to comply. A finding of the panel that there was a willful failure to substantially comply with any imposed sanction shall result in the decertification of the mediator.

(c) Decertified Mediators. If a mediator has been decertified or barred from service pursuant to these rules, the mediator shall not thereafter be certified in any circuit or assigned to mediate a case pursuant to Florida Rule of Civil Procedure 1.700 or be designated as mediator pursuant to rule 1.720(f) unless reinstated.

(d) Decision to be Filed. Upon making a determination that discipline is appropriate, the panel shall promptly file with the center a copy of the decision including findings and conclusions certified by the chair of the panel. The center shall promptly mail to all parties notice of such filing, together with a copy of the decision.

(e) Notice to Circuits. The center shall notify all circuits of any mediator who has been decertified or suspended unless otherwise ordered by the Supreme Court of Florida.

(f) Publication. Upon the imposition of sanctions, the center shall publish the name of the mediator, a short summary of the rule or rules which were violated, the circumstances surrounding the violation, and any sanctions imposed.

(g) Reinstatement. A mediator who has been suspended or decertified may be reinstated as a certified mediator. Except as otherwise provided in the decision of the panel, no application for reinstatement may be tendered within 2 years after the date of decertification. The reinstatement procedures shall be as follows:

(1) A petition for reinstatement, together with 3 copies, shall be made in writing, verified by the petitioner, and filed with the center.

(2) The petition for reinstatement shall contain:

(A) the name, age, residence, and address of the petitioner;

(B) the offense or misconduct upon which the suspension or decertification was based, together with the date of such suspension or decertification; and

(C) a concise statement of facts claimed to justify reinstatement as a certified mediator.

(3) The center shall refer the petition for reinstatement to a hearing panel in the appropriate division for review.

(4) The panel shall review the petition and, if the petitioner is found to be unfit to mediate, the petition shall be dismissed. If the petitioner is found fit to mediate, the panel shall notify the center and the center shall reinstate the petitioner as a certified mediator; provided, however, if the decertification has continued for more than 3 years, the reinstatement may be conditioned upon the completion of a certified training course as provided for in these rules. Successive petitions for reinstatement based upon the same grounds may be reviewed without a hearing.

Rule 10.250 Subpoenas

(a) Issuance. Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery and for the appearance of any person before a complaint committee, a panel, or any member thereof, may be issued by the chair of the complaint committee or panel or, if the chair of the panel is absent, by the vice-chair. Such subpoenas may be served in any manner provided by law for the service of witness subpoenas in a civil action.

(b) Failure to Obey. Any person who, without adequate excuse, fails to obey a duly served subpoena may be cited for contempt of the committee or panel in accordance with rule 10.200.

Rule 10.260 Confidentiality

(a) Generally. Until sanctions are imposed, whether by the panel or upon agreement of the mediator, all proceedings shall be confidential. After sanctions are imposed by a panel, all documentation including and subsequent to the filing of formal charges shall be public with the exception of those matters which are otherwise confidential pursuant to law or rule of the Supreme Court. If a consensual agreement is reached between a mediator and a complaint committee, only the basis of the complaint and the agreement shall be released to the public.

(b) Witnesses. Each witness in every proceeding under these disciplinary rules shall be sworn to tell the truth and not disclose the existence of the proceeding, the subject matter thereof, or the identity of the mediator until the proceeding is no longer confidential under these disciplinary rules. Violation of this oath shall be considered an act of contempt of the complaint committee or the panel.

(c) Papers to be Marked. All notices, papers, and pleadings mailed prior to formal charges being filed shall be enclosed in a cover marked “confidential.”

(d) Breach of Confidentiality. Violation of confidentiality by a member of the board shall subject the member to removal by the chief justice of the Supreme Court of Florida.

Committee Notes

1995 Amendment: The Committee believed the rule regarding confidentiality should be amended in deference to the 1993 amendment to section 44.102, Florida Statutes, that engrafted an exception to the general confidentiality requirement for all mediation sessions for the purpose of investigating complaints filed against mediators. Section 44.102(4) specifically provides that “the disclosure of an otherwise privileged communication shall be used only for the internal use of the body conducting the investigation” and that “[Prior] to the release of any disciplinary files to the public, all references to otherwise privileged communications shall be deleted from the record.”

These provisions created a substantial potential problem when read in conjunction with the previous rule on confidentiality, which made public all proceedings after formal charges were filed. In addition to the possibly substantial burden of redacting the files for public release, there was the potentially greater problem of conducting panel hearings in such a manner as to preclude the possibility that confidential communications would be revealed during testimony, specifically the possibility that any public observers would have to be removed prior to the elicitation of any such communication only to be allowed to return until the next potentially confidential revelation. The Committee believes that under the amended rule the integrity of the disciplinary system can be maintained by releasing the results of any disciplinary action together with a redacted transcript of panel proceedings, while still maintaining the integrity of the mediation process.

Rule 10.270 Interested Party

A mediator is disqualified from serving on a committee or panel proceeding involving the mediator’s own discipline or decertification.

Rule 10.280 Disqualification of Members of a Panel or Committee

(a) Procedure. In any case, any party may at any time before final disciplinary action show by a suggestion filed in the case that a member of the board before which the case is pending, or some person related to that member, is a party to the case or is interested in the result of the case or that the member is related to an attorney or counselor of record in the case or that the member is a material witness for or against one of the parties to the case.

(b) Facts to be Alleged. A motion to disqualify shall allege the facts relied on to show the grounds for disqualification and shall be verified by the party.

(c) Time for Motion. A motion to disqualify shall be made within a reasonable time after discovery of the facts constituting grounds for disqualification.

(d) Action by Chair. The chair of the appropriate committee or panel shall determine only the legal sufficiency of the motion. The chair shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the chair shall enter an order of disqualification and the disqualified committee or panel member shall proceed no further in the action. In the event that the chair is the challenged member, the vice-chair shall perform the acts required under this subdivision.

(e) Recusals. Nothing in this rule limits a board member’s authority to enter an order of recusal on the board member’s own initiative.

(f) Replacement. The center shall assign a board member to take the place of any disqualified or recused member.

(g) Qualifications. Each assignee shall have the same qualifications as the disqualified or recused member.

Rule 10.290 Supreme Court Review

(a) Right of Review. Any mediator found to have committed a violation of these rules shall have a right of review of the action taken by the panel. Review of this type shall be under the jurisdiction of the Supreme Court of Florida. Notice of review shall be filed with the clerk of the Supreme Court of Florida. A mediator shall have no right of review of any resolution reached pursuant to rule 10.220(j).

(b) Rules of Procedure. The Florida Rules of Appellate Procedure shall be applicable to review by the Florida Supreme Court.

Rule 10.300 Mediator Qualifications Advisory Panel

(a) Appointment. The Mediator Qualifications Advisory Panel shall be composed of 9 members, 3 from each geographic division served by the Mediator Qualifications Board. No member of the Mediator Qualifications Board shall serve on the advisory panel.

(b) Membership and Terms. The membership of the panel shall be composed of 1 county mediator, 1 family mediator, and 1 circuit mediator from each division and shall be appointed by the chief justice. The initial terms shall be as follows: county mediators – 2 years, family mediators – 3 years, circuit mediators – 4 years. All successive appointments shall be for 4 years. The panel shall select 1 member as chair and 1 member as vice-chair. No member shall serve more than 2 consecutive terms.

(c) Meetings. The panel shall meet as necessary to consider requests for advisory opinions. All such requests, which shall be in writing, shall be considered only if received from mediators subject to the mediation rules. At the direction of the chair, in the case where a meeting is not justified on the basis of the expense that would be incurred, and after consideration of the number of requests for opinions, the panel may vote by mail.

(d) Quorum. The quorum for a meeting of the panel shall be 5 members, whether action is to be taken at a meeting or by mail. A majority of all members shall be required to concur in any advisory opinion issued by the panel. After due deliberation the panel shall render opinions, which shall be consistent with supreme court decisions on mediator discipline, the Rules for Certified and Court-Appointed Mediators, and considered in light of previous opinions of the panel.

(e) Effect of Opinions. While reliance by a mediator on an opinion of the panel shall not constitute a defense in any disciplinary proceeding, it shall be evidence of good faith and may be considered by the board in relation to any determination of guilt or in mitigation of punishment.

(f) Confidentiality. In any opinion issued by the panel all references to the requesting mediator shall be deleted.

(g) Opinions. All opinions of the panel shall be in writing, with a copy provided to the Florida Dispute Resolution Center. The center shall make such opinions available, upon request, to any mediator or the public.

(h) Staff Assistance. The Florida Dispute Resolution Center shall provide staff assistance to the panel.

                        author

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