Wednesday, October 14, 2015

Other ADR Rules Rejected by Fla. S. Ct.

Last week, the Supreme Court of Florida ruled on the so-called "Other ADR" case that underwent oral argument this past summer on rule amendments proposed by its own ADR Rules & Policy Committee. This effort was opposed by myself and other members of the ADR Section Executive Council for myriad reasons. The stated purpose-- to establish a set of uniform rules and standards of professional conduct applicable to any dispute resolution process selected by a court for which no rules exist-- was not the issue. Though this effort was supposedly intended to instill and promote public confidence in the use and participation in such processes; that was not the problem either. The ADR Rules & Policy Committee believed the proposed rules and standards of professional conduct would increase the use of ADR, increase party self-determination in the selection of an ADR method or methods, and provide safeguards for parties selecting ADR neutrals performing services for ADR processes for which no other standards of professional conduct exist. Perhaps, but the real defects were in the inconsistencies and lack of clarity in the actual language, which failed to address things like confidentiality and conflicts. The proposal stated the public’s use, understanding, and satisfaction with an Other ADR Process could only be achieved if neutrals embrace the highest ethical principles, but most professional ADR practitioners already have to abide by one or more set of established standards. The ADR Rules & Policy Committee claimed that the time is ripe for revising the procedural rules to address court referral to all types of emerging ADR processes. Discipline was left to the trial judges under the proposed set of rules. If, in the future, rules or standards of professional conduct are promulgated for a process, these rules and standards would then be inapplicable to that new process. In response to the changes, there were several strong criticisms filed, including formal comments by Civil Rules Committee and ADR Section of The Florida Bar, as well as from the Sixth and Eighth judicial circuits and other interested parties. In its per curiam opinion, the Florida Supreme Court declined to adopt the ADR Committee’s proposals: "Given the substantial criticism, alleged deficiencies in the proposals, and other issues raised at oral argument in this matter and in the comments received, we conclude that the time is not yet ripe for rules addressing ADR processes other than those already identified and governed by current court rules." See opinion here--