ADR Rules & Policy Urges Uncertified Mediators Be Bound

Last month, the ADR Rules & Policy Committee of the Florida Supreme Court filed a response to comments on its own proposed rule revisions, stating that the court has the inherent authority and obligation to ensure that the mediation process parties use operates in accordance with mediator rules and standards already adopted. The proposed revisions pertain to the practice and procedures of mediation in the court system and therefore fall under the Court’s authority under Article V, Section 2(a) of the Florida Constitution. The proposed rules require those who mediate court connected cases as part of the machinery of the judicial process to observe the existing rules of mediators, regardless of certification. Mediation has been an integral part of the Florida court process for over thirty years. The committee found it inconsistent and illogical to have one group of professionals in the court process who are subject to no ethical standards and disciplinary process involving the vitally important mediation service they provide to the parties and the court system. Florida court mediators are not only required to be familiar with the statutes and rules governing mediation, but are also obligated to follow court rules of procedure, administrative orders, local rules, and any other rules related to mediation in the court system. ADR Rules & Policy did not yield to criticism found in the comments filed and urged the court to proceed by adopting proposed amendments to Florida Rules of Civil Procedure 1.710 and 1.750; Florida Small Claims Rule 7.090; Florida Rule of Juvenile Procedure 8.290; Florida Rule of Appellate Procedure 9.700; Florida Family Law Rule of Procedure 12.741; and Florida Rules for Certified and Court-Appointed Mediators 10.200 and 10.700. The committee stated parties and their attorneys are still free to choose whomever they want to mediate their case without the beneficial boundaries of mediator ethics and a disciplinary system to enforce them, provided that they mediate prior to filing a court case. They may also choose to use any type of ADR process prior to filing a lawsuit. However, the committee made clear it does not believe the creation of an exempt group of compensated court professionals was the intent of the court for mediation in Florida. See more in Case Number: SC20-565 here-- http://onlinedocketssc.flcourts.org

 

Florida Appellate Mediator Certification Changes

Under a new Administrative Order of The Supreme Court of Florida, No. AOSC19-26 governing certification of mediators, several changes to the continuing mediator education (CME) requirements have been implemented. News of the changes came to presently certified mediators via the Florida Dispute Resolution Center (DRC), including the removal of the four-hour appellate-specific CME requirement. I have been mediating appellate cases since 2001, before the statewide certification existed. In 2001, the Fifth District Court of Appeal instituted a pilot program referring appeals to mediation before the expense of briefing. The pilot was deemed a success by the court and adopted as a permanent program in 2004. The program is touted as achieving the goals of saving litigants time and money by resolving disputes more quickly and less expensively than the appeal process. This includes helping parties and counsel to narrow and clarify issues for appeal so that cases can be expedited. For many years, the results have hovered around a third of cases being resolved through the appellate mediation process. Those of us who participated as mediators were grandfathered into the statewide certification which requires four hours of initial instruction by a recognized DRC approved trainer. Until now, four additional hours of CME was required every two years for recertification. However, be advised that effective immediately, certified appellate mediators must maintain only a certification in either of family, circuit or dependency mediation and complete only the standard CME requirements in order to renew as a certified appellate mediator. See more here-- http://tiny.cc/1obh8y

How to Become a Mediator

Though a forthcoming rules amendment case in The Supreme Court of Florida will likely be decided this year concerning whether certification is required of all mediators in court-filed cases in civil and family courts, certified mediators are currently the only ones subject to ethical rules and other regulations. In order to become certified as a mediator in Florida, there are stringent criteria and training required which is outlined in the link below. I am often asked about this and so the complete information can be found in this convenient publication of the Florida Dispute Resolution Center (DRC). When I became certified in 2001, you had to be a lawyer for five years, just like a judge. Observing mediations is still required and I fulfill my obligation to the profession by providing these opportunities. For each observation required for certification, a trainee must observe an entire session of the type of mediation for which certification is sought, conducted by a certified mediator of the type for which certification is sought. We fill out a form for the observer with the case style, our signature and mediator number. The observation requirement can't be satisfied by any individual who is a party, participant, or representative in the mediation. Candidates for certification may not fulfill the observations before beginning a certified mediation training program. As I'm often asked about whether appellate or pre-suit mediations count, if the case is that which is or would have been the type of mediation for which certification is sought, it may be utilized for observation purposes. Likewise, a federal court mediation conducted by a certified circuit mediator may be utilized to fulfill a circuit mentorship, even though our federal district has its own certification. However, administrative agency mediations conducted under rules and procedures other than that of the state trial courts may not be utilized to fulfill the mentorship requirements. See DRC publication detailing certification process here-- https://bit.ly/2JR4vsi and a link to DRC's annual conference next month in Orlando,"Promoting Mediator Professionalism," here-- https://bit.ly/2tfuJxA