This article originally appeared in ACResolution, Spring 2008, Volume 7, Issue 3, Page 3. Reproduced by permission of the Association for Conflict Resolution (ACR)
On November 15, 2007, the Florida Supreme Court took the historic step of removing any requirement that a mediator certified by the Florida Supreme Court must be an attorney. Earlier, the Court had adopted a “point system” which would “allow applicants to obtain certification in a variety of different ways more directly related to the actual skills and experience the Florida Supreme Court Alternative Dispute Resolution Rules and Policy Committee has determined to be necessary for service as an effective mediator.” The Court, however, had retained for further study until now the certification requirement that for circuit mediation (civil cases more than $15,000), a mediator also must be a Florida attorney with five years of Florida practice or a trial judge from any U.S. jurisdiction.
While the petition for the adoption of a point system was under consideration by the Florida Supreme Court, then ACR President Larry Fong and President-Elect Terry Wheeler submitted a letter of support (on behalf of ACR) for the point system. The letter stated that ACR “particularly commends the efforts to expand the certification to include non-lawyers, increase ethnic and cultural diversity, provide the parties with greater choice of certified mediators, allow non-lawyers to be eligible for certification in all areas of mediator certification, value prior mediation experience, value out-of-state training, and build upon a tripartite qualification model of mentorship, training and experience.”
When first adopting the point system, the Florida Supreme Court had acknowledged that “the general consensus in the alternative dispute resolution field is that possession of academic degrees, including law degrees, does not necessarily predict an individual’s ability to be a good mediator” (http://www.floridasupremecourt.org/decisions/2006/sc05-998.pdf). In the present decision (http://www.floridasupremecourt.org/decisions/2007/sc05-998.pdf), the Court endorsed this approach for all categories of mediator certification.
The approach of the Court is consistent with the Uniform Mediation Act Provision 9(f) which states “This [Act] does not require that a mediator have a special qualification by background or profession” (http://www.law.upenn.edu/bll/archives/ulc/mediat/2003finaldraft.htm). Similarly, in 2002, the American Bar Association Section of Dispute Resolution adopted a Resolution on Mediation and the Unauthorized Practice of Law which stated that “Mediation is not the practice of law. Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.” (http://www.abanet.org/dispute/resolution2002.pdf).
In addressing concerns expressed by the Florida Bar, which opposed the removal of the above attorney requirement, the Court also created a new rule which provides that “At the request of either party, the court shall appoint a certified circuit court mediator who is a member of the Florida Bar” (See Florida Rules of Civil Procedure 1.720(f)(2)). Since Florida Rules of Civil Procedure 1.720 provides that parties ordered to mediation have 10 days to select a mediator, it is rare that courts in Florida actually select the mediator. Empowering parties to choose their own mediator is an important element of self-determination in mediation. The Florida Supreme Court appears to have found a way to provide the parties with a greater diversity of mediators from which to choose, while simultaneously addressing the Florida Bar’s concerns, to some extent, by providing that parties will not have a mediator selected by the Court who is not an attorney if they prefer an attorney mediator.
One of the factors considered by the Florida Supreme Court ADR Rules and Policy Committee in recommending changes to the former mediator qualification degree system was that “[t]he present qualifications do not promote ethnic and racial diversity, nor do they promote diversity of practice and background. Of the 2,114 Florida Supreme Court certified circuit mediators, roughly 22 percent are female, 1 percent are African American, 4 percent are Hispanic, and less than 0.03 percent are of American Indian, Alaskan Native, or Asian descent” (http://www.floridasupremecourt.org/clerk/comments/2005/05-998_Petition.pdf). The attorney requirement was seen by the Committee as unnecessarily restricting the gender and racial diversity of mediators while not necessarily improving the quality of mediators. According to Sharon Press, Director of the Florida Dispute Resolution Center and an ACR member, “One of the primary reasons to support the change was that there was no way to justify the lawyer/judge requirement which created an obstacle for qualified individuals who wished to serve as certified mediators in Florida.”
In explaining the rationale of the ADR Rules and Policy Committee for recommending removal of the attorney requirement, the Court recognized that “… the Committee seeks to ensure that Florida maintains its place of preeminence in the alternative dispute resolution field in the United States…” With this momentous decision, the Florida Supreme Court has enhanced party self-determination in the selection of mediators and provided an important precedent for credentialing mediators throughout the world.
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