Florida Mediation Reporting Rule Comments Due 3/31

The Supreme Court of Florida's Committee on Alternative Dispute Resolution (ADR) Rules and Policy is seeking comments on proposed revisions to the Florida Rules of Civil Procedure, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure. These rules are revised to include subdivisions entitled Report of Mediation and Adjournment for Further Mediation, which are intended to compliment and clarify the scope of Rule 10.360(e), Reporting Outcome, and Rule 10.360(f), Presence, Florida Rules for Certified and Court-Appointed Mediators. With these changes, after an initial mediation session, a mediator could report agreement, no agreement, partial agreement, or adjournment for further mediation. No other descriptors, modifiers, comments, or recommendations may be included in the report unless all parties consent in writing. However, nothing in the amendment prohibits the mediator from identifying the parties, counsel, and participants present at the mediation and whether present physically or by communication technology. In a mediation involving more than two parties, a mediator may now report agreement or partial agreement as to any parties who agree and no agreement as to the other parties. The proposed revisions to the Florida Rules of Civil Procedure, the Florida Small Claims Rules, and the Florida Rules of Appellate Procedure also contain a subdivision entitled Status Reports in response to recent civil case management rules adopted by the Florida Supreme Court that have changed the way lawsuits are handled in state court with more of a federal-style scheduling track. Comments to the ADR Rules and Policy Committee should be made care of the Florida Dispute Resolution Center at: drcmail@flcourts.org on or before Monday, March 31, 2025, at 5:00 p.m. EDT. See more on the proposed language here-- https://tinyurl.com/4yj3cv5x

FL Case Management Comments due 8/6

The Supreme Court of Florida recently put forth new Case Management procedures under Rules 1.200 and 1.201 Florida Rules of Civil Procedure, but because they did so without a formal comment period beforehand, members of the bar may weigh in by August 6, 2024. These rule changes would otherwise take effect on January 1, 2025. I have been working with the ADR Section of The Florida Bar on a comment regarding the lack of a clear definition for exactly what alternative dispute resolution processes are contemplated by the rule. We are seeking to add the following italicized language into the revised Rule 1.200(d)(2)(H) entitled Case Management Order for completion of alternative dispute resolution including mediation, arbitration and other processes available under Florida Statutes and Florida Rules of Civil Procedure. Defining what “alternative dispute resolution” includes or means (as it is not clearly defined in the Florida Rules of Civil Procedure) will reduce confusion by specifically mentioning the most commonly utilized methods and alluding to additional methods available under Florida Statutes and Florida Rules of Civil Procedure, thereby supporting the Supreme Court's purpose to promote fair and timely resolution of cases. This also allows for future methods of dispute resolution to be incorporated without the need for rule amendments, such as perhaps Early Neutral Evaluation. In their commentary to the rules, the court notes Rule 1.200 as amended is intended to supersede any case management rules issued by circuit courts and administrative orders on case management to the extent of contradiction. The rule is not intended to preclude the possibility of administrative orders issued by circuit chief judges and local rules under Florida Rule of General Practice and Judicial Administration 2.215 that refine and supplement the procedures delineated in the rule, including rollover practices for situations where a trial is not reached during the scheduled trial period. See more here at case number SC2023-0962 here-- https://tinyurl.com/yujktxpf

Non-binding Arb Rule Comments due 5/2!

The Civil Rules Standing Committee of The Florida Bar is proposing changes to Florida Rule of Civil Procedure 1.820 regarding hearing procedures for Non-Binding Arbitration. This informal and expeditious Alternative Dispute Resolution process is being utilized more and more to clear dockets backlogged from Covid, Hurricanes and general lack of trial dates. Judges in many Florida Circuit Courts are referring cases to this process and so some changes are being put out for comment. Among the changes are serving the award on the parties rather than filing with the court under seal. This is likely because many of our 67 counties have no pull down menu for filing under seal and can lead to awards being seen inadvertently by the judicial officer presiding over the case. Another change contemplates maintaining the original exhibits through the end of the case. I'm not sure arbitrators want to become deputy court clerks warehousing records, but parties can agree to do it themselves. Interested persons should send comments to: midavis@floridabar.org before May 2, 2023. See more here-- https://tinyurl.com/58j7xa4t

ADR Section Supports ODR

The Florida Supreme Court last month extended the public comment deadline on a rules petition designed to promote greater use of remote technology or online dispute resolution (ODR) in court proceedings, including mediation. Specifically, the COVID-19 Workgroup’s proposed rules changes begin with Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology. The Alternative Dispute Resolution (ADR) Section's Executive Council has now filed a comment on behalf of its members in support of the continued use of remote technology. This was done after surveying members about personal experiences with remote proceedings over the past eighteen months of the coronavirus pandemic and their opinions regarding the proposed rules changes. The Florida Bar ADR Section favors enhancing the dispute resolution process through modernization while also increasing efficiency and lowering costs for the participants. It appears the Proposed Rules will assist to meet that goal, and as such the ADR Section supports the Workgroup proposed changes to Rules 1.700, 1.720, 1.730, 1.750, 9.700, 9.720, and 9.740 with the changes suggested through an official comment filed. The use of communication technology and remote participation at mediation and arbitration provides ready access to these proceedings by adding an additional means to attend and often lowers barriers to participation. Scheduling is easier when travel time is eliminated. The cost of attending is less when there are no lodging and parking costs either. Any early concerns as to communication technology and security have been addressed to the satisfaction of most practitioners and participants. The ADR Section also anticipates that these systems will continue to evolve and improve over time. See more here-- https://bit.ly/2V1hGll

ADR Rules & Policy Petition: Comments Due 7/31!

The ADR Rules & Policy Committee of The Supreme Court of Florida has petitioned the court for the passage of amendments that would require all mediators who mediate actions filed and pending in any Florida court be subject to Parts II, Standards of Professional Conduct (ethical standards), and III, Discipline (disciplinary process), of the Florida Rules for Certified and Court-Appointed Mediators, regardless of whether or not a court order of referral has been issued. The Committee also recommends the addition of corresponding language to Rules 10.200 and 10.700, Florida Rules for Certified and Court-Appointed Mediators. The amendments are designed to remedy two shortcomings in the existing rules. First, mediators who are not certified are currently not subject to the rules if they mediate a filed court action before an order of referral is issued. Second, although it is the Committee’s opinion that uncertified mediators selected by the parties, but not appointed by a specific court order after review by the presiding judge as required by the procedural rules, are subject to the ethical standards and disciplinary process, the Committee believes there is a dispute regarding whether a general order of referral suffices to constitute a court appointment. This petition is designed to remedy those issues. The amendments submitted in this petition originated in 2017 as a Committee proposal that would have required all mediators of state court trial and appellate cases be Florida Supreme Court certified, with appointment restricted to their subject matter areas of mediator certification (mandatory certification was also supported by a majority of the Executive Council of The Alternative Dispute Resolution Section of The Florida Bar). Comments must be filed by July 31, 2020, after an extension was granted. See more here-- https://bit.ly/36ZMzIz

Electronic Everything now in Effect!

Effective September 1, 2012, E-Discovery amendments to the following existing Florida Rules of Civil Procedure drafted in my subcommittee are effective: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at--http://www.floridasupremecourt.org/decisions/2012/sc11-1542.pdf Additionally, mandatory E-service begins in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by E-mail under Florida Rule of Judicial Administration 2.516 is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. E-mail service will be mandatory for attorneys practicing in remaining divisions on October 1, 2013. See E-Service opinion at--http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf Finally, though civil ECF is well-established in Orange County, new electronic filing requirements adopted by the Fifth District Court of Appeal begin today by Administrative Order--http://www.5dca.org/Clerk/Administrative%20Orders/AO5D12-03_08_12.pdf. Those who practice in this area should register with the appellate court's eDCA system-- http://edca.5dca.org Incidentally, I tried uploading a Mediation Report via eDCA this morning and there are presently no upload categories for documents appellate court-appointed neutrals file, such as reports and evaluations. I have contacted the clerk about this with my filing.

Supreme Court of Florida Amends Mediation Appearance Rule

New language from the Committee on Alternative Dispute Resolution Rules and Policy filed by petition to amend rule 1.720 of the Florida Rules of Civil Procedure becomes effective on January 1, 2012. The revisions pertain to the requirements for the appearance of a party or a party’s representative at a mediation conference. The proposals were in response to the charge to monitor court rules governing alternative dispute resolution procedures and to make recommendations as necessary to improve the use of mediation. This opinion linked below sets forth the changes and requires physical presence of a party unless otherwise stipulated in writing or excused by court order. A representative of an insurance carrier for any insured party who is not such carrier’s outside counsel is deemed to appear if that person has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation. Additionally, 10 days prior to appearing at a mediation conference, a notice shall be filed with the court and served, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative. Given the nature of the way things transpire today, a rude awakening could be in store for some litigants. See more in the decision and comments: http://www.floridasupremecourt.org/decisions/2011/sc10-2329.pdf