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-- http://www.floridasupremecourt.org/decisions/2015/sc14-1852.pdf

Join me for UWWM's "Other ADR" CLE June 18th

This month, along with my Upchurch, Watson, White & Max colleagues and a special guest, we'll explore major changes being proposed by The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy in our free webinar. This webinar at noon on Thursday, June 18, is set following The Florida Bar Alternative Dispute Resolution Section and formal commenters to "Other ADR" proposals at oral argument this week the Florida Supreme Court. Incoming Chair of the ADR Section, Bob Hoyle, will share highlights of his presentation and the reception of rules by the bench at oral argument set in this matter. See more information on these rules here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute and be sure to tune in here-- http://www.wfsu.org/gavel2gavel/live.php As CLE presenters, we will review the perceived potential outcome based on this oral argument, as well as explain the new rubric for use of these added settlement techniques. All three presenters-- Lawrence Kolin, Bob Hoyle and Michelle Jernigan-- are members of The Florida Bar ADR Section's Executive Council and will bring special insight to the debate over proposed amendments to the Civil Procedure Rules and 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. This CLE webinar is geared toward litigation practitioners who mediate frequently, as well as mediators who may be eligible for CME. After registering at-- https://attendee.gotowebinar.com/register/8638477297530214914, you will receive a confirmation email containing information about joining our upcoming GoToWebinar program. Look forward to having you join us and if not, the program will be available for replay at-- http://www.uww-adr.com/downloadable-webinars, along with our other CLE programs.

ADR Rules & Policy Proposals Oral Argument Set June 3rd

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 in The Florida Supreme Court and has been granted a brief time for oral argument along with others who commented. Among the comments by the ADR 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 (though some proponents say that is for the legislature to handle). 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. The ADR Section will divide its presentation with others responding to the presentation at oral argument set for 9:00 am EST June 3, 2015 in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute and be sure to tune in here-- http://www.wfsu.org/gavel2gavel/live.php

ADR Rules & Policy Responds to Comments on ADR Process Rules for which No Other Standards Exist

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. Comments were filed at the end of last year to which Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal has responded, stating the new rules and standards provide basic rules intended to provide some level of guidance to practitioners and protection to consumers for ADR processes for which no guidance or protections currently exist. Current ADR processes which have promulgated rules and standards would not be subject to these rules. According to the committee's response, some of the "Other ADR Processes" are currently authorized in statute (such as Voluntary Trial Resolution) and others are being utilized by courts and parties with no particular statement of authority (such as Early Neutral Evaluation). The ADR Rules and Policy Committee seeks to encourage expanded and innovative use of ADR processes without fear of placing parties in jeopardy. The committee feels there is no way of knowing what Other ADR Process will be selected or created by parties or the court, and so there is no way to suggest specific qualifications, certifications, definitions or an appropriate disciplinary process. Due to the unknown nature of which process may be selected, the committee feels it must be up to the court ordering the process to establish some guidance for the process. With regard to confidentiality, the committee states there are many ADR processes for which confidentiality is neither appropriate nor expected. The committee did agree to modify defining a neutral as follows: an impartial third party who is not predisposed to the resolution or outcome of the process who participates at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute. The committee concludes that the adoption of new rules may lead to experience necessary for novel ADR processes to gain popularity, after which time the courts and/or legislature may have confidence to adopt more specific rules for those utilized successfully over a period of time. It is unclear whether the Supreme Court of Florida will hold oral argument on this proposal. See more in filings for Case No. SC14-1852 at http://www.floridasupremecourt.org