ADR Section comments on ADR Rules & Policy Proposals

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. The Florida Bar ADR Section Executive Council has filed its comments this week in The Florida Supreme Court. Among the comments by the section is a criticism that there is no provision in the proposed rules which mandates that all communications of all "Other ADR Processes" participants are confidential and privileged, as set forth in the Mediation Confidentiality and Privilege Act. There is nothing that provides that decisions, awards, or evaluations are sealed (as are the "awards" in mandatory non-binding arbitration) and may not be considered by the presiding judge in the event that the dispute proceeds to trial. However, apparently the neutral, without agreement of the parties, can impose confidentiality upon the parties. New rule 16.100 (a)(2) states that the neutral upon commencement of an “Other ADR Process” session shall "inform the participants the extent to which communications may be confidential." The concept of an evidentiary "privilege" as to mediation communications, which is not the same as "confidentiality," is nowhere set forth in the proposals, nor do the proposed rules provide for any sanctions which can be imposed upon any party for breaching "confidentiality." In the proposal, “Other ADR Process” is defined as “[A]ny method used to resolve disputes other than litigation for which no other Supreme Court rules or standards of professional conduct exist.” The comment by the section specifically points out that rules 16.010 (b), 12.760 (d)(2), 1.840 (c)(2) incorrectly define a "Neutral" as an "impartial third party who participates in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." The terms "Neutral" and "Impartial" are not one and the same. The term "Impartial" as defined in Rule 11.080 of the Florida Supreme Court Rules for Court-Appointed Arbitrators “means freedom from favoritism or bias in word, action, and appearance." The same definition appears in Rule 10.330 of the Florida Supreme Court Rules for Certified and Court-Appointed mediators. The term "Neutral" means not being predisposed to the resolution or outcome of the ADR process. As such, the proposed rules need to be drafted so as to comport with the existing Court Rules. No word on whether oral argument will be set in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute