The Florida Bar
Bar Issue Papers
Alternative Dispute Resolution (ADR)
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II. Bar Position
Over the last 25 years, the Florida State Courts System been increasingly dedicated to offering litigants opportunities to peaceful resolve their disputes without the need for judicial intervention. This empowering dedication has created one of the most comprehensive court-connected mediation programs in the country. In the 1970's the first citizen dispute settlement (CDS) centers were created to address community and neighbor disputes. By the mid-1980's, the Florida Legislature had commissioned a study group on alternative dispute resolution for use in Florida’s civil courts. The Dispute Resolution Center (DRC) was also created during that time to provide assistance to the courts in developing ADR programs and to conduct education and research on ADR in general. On January 1, 1988, Chapter 44, Mediation Alternatives to Judicial Action was implemented granting civil trial judges the statutory authority to refer all, some or a portion of their caseload to mediation or arbitration.
II. Bar Position
A. American Bar Association Position
In 1981, the ABA passed its policy on ADR, which basically promotes its research, use and evaluation. In 1986, the committee dealing with the subject changed its status from a special standing committee, showing the ABA's commitment to ADR.
In August 1989, the House of Delegates adopted a resolution supporting the continued use of and experimentation with alternative dispute resolution techniques, both before and after suit is filed, as necessary and welcome components of the justice system in the United States.
In July 2000 the ABA House adopted policy recommending that court-mandated mediation include an opt-out prerogative in any action in which one party has perpetrated domestic violence upon the other party.
In August 2001 the ABA House of Delegates approved standards for the establishment of ombuds offices in the public and private sector. The purpose of the standards is to provide advice and guidance on the structure and operation of ombuds offices and to promote confidence in the integrity of the ombuds process.
B. The Florida Bar Position
In 1987 the Bar was asked by the Florida Supreme Court to comment on the proposed rules implementing the ADR legislation. In oral arguments to the high court, the Bar expressed concern about the potential for judges to order blanket referrals of cases to mediation and arbitration without reviewing each case individually. To avoid that, the Bar suggested that hearings be required before cases could be sent on to mediation or arbitration to determine if they could possibly be resolved through those processes and if referral would cause financial hardship for either party. In March 1986, the Board of Governors voted to support an alternative dispute resolution bill as a nonpriority item. The Board of Governors did not support a mandatory provision regarding nonbinding arbitration or mediation in all cases.
A committee appointed by The Florida Bar to review the Bar's disciplinary system looked into the feasibility of a statewide arbitration system to settle fee disputes between lawyers and their clients. There are now voluntary fee arbitration programs established by The Florida Bar in effect in all 20 circuits.
In 1988, The Florida Bar created a special ADR & Mediation Committee. In July 1997, the Board of Governors approved a pilot program to mediate grievance complaints. The test project was carried out in the 11th, 13th, and 2nd circuits, and provided sufficient information to set up a permanent program in 1998.
In June 1998, the Florida Supreme Court approved the implementation of a statewide grievance mediation program. The program is designed to resolve citizen complaints against lawyers. The Board of Governors approved a ninemember standing committee, which includes three nonlawyers, that has oversight of the program. The committee will continue to work to educate lawyers and the public about the purpose of mediation.
C. The Florida Family Law Section Position
The Family Law Section "is of the unanimous opinion that the enacted legislation ... will serve to expedite resolution of civil disputes. Mediation is particularly significant in the area of family law...." (Commentary to Supreme Court, December 3, 1987, emphasis added.)
Suggested rules for implementation of the new ADR law exempts all family law matters from the arbitration requirements. The section endorses this position. Generally, the section supports mediation because it facilitates agreement while the group rejects arbitration in family law matters because of the adversarial nature of the process.
As of August 2002, the section supports the establishment and funding of programs to provide dependency mediation services in each judicial circuit.
Over the past 30 years, the Florida State Court System’s dedication to alternative dispute resolution (ADR) and offering litigants court-connected opportunities to resolve their disputes without judicial intervention has resulted in one of the most comprehensive court-connected mediation programs in the country. The first citizen dispute settlement (CDS) centers were created in the 1970s to address community and neighbor disputes. In the mid 1980's, the Florida Legislature created a study commission on the use of alternative dispute resolution in Florida’s courts. The Dispute Resolution Center (DRC) was also created during the mid 1980’s to provide assistance to the courts in developing ADR programs and to conduct education and research on ADR in general. On January 1, 1988, comprehensive revisions to Chapter 44, Florida Statutes, entitled “Mediation Alternatives to Judicial Action,” was implemented. This legislation granted civil trial judges the statutory authority to refer cases to mediation or arbitration, subject to rules and procedures established by the Supreme Court of Florida. Since then, the statute has been revised several times and procedural rules, ethical standards, grievance procedures, training standards, and continuing education requirements for mediators have been implemented.
The Florida State Court System consists of 20 judicial circuits that comprise Florida’s 67 counties. Prior to July 2004, ADR programs in Florida were funded by the counties. This resulted in great variations of ADR service across the state. Generally, single county circuits provided litigants with access to a wide variety of ADR programs. In multi-county circuits, ADR services were offered in some, but not all of the counties. Because of a constitutional amendment implemented on July 1, 2004, the funding for the state court system became the responsibility of the state. The goal is for litigants to have access to “essential” services regardless of where they live in the state. Included among those “essential” services, are some aspects of court-connected mediation and arbitration. This goal has not been fully realized yet for ADR services, because there has not yet been full funding for implementation. In 2007, Florida ADR programs included:
- 9 Citizen Dispute Settlement Centers (CDS) Programs
- 54 County Mediation Programs
- 60 Family Mediation Programs
- 9 Circuit Civil Mediation Programs
- 53 Dependency Mediation Programs
- 8 Victim Offender Programs
- Community/Juvenile Arbitration Program
- 9 Juvenile Restitution Programs
- 8 Adult Restitution Mediation Programs
- 1 Appellate Mediation Program
- 10 Non-Binding Arbitration Programs
The Supreme Court of Florida, through the DRC, offers certification of mediators for county, family, circuit and dependency case. Certified mediators may receive appointments from the court when the litigants are unable to select their own mediator. Certified mediators and those who mediate court-ordered cases are bound by the ethical standards in the Florida Rules for Certified and Court-Appointed Mediators. Mediators renew their certification every two years and must complete 16 hours of continuing mediator education applicable to each area of certification. The Supreme Court does not certify arbitrators; however, court-appointed arbitrators are bound by the Florida Rules for Court-Appointed Arbitrators.
As of December 2007:
- There were 5,467 individuals certified as mediators in one, or a combination of, the following areas:
- 3,274 certified county mediators
- 1,957 certified family mediators
- 2,438 certified circuit mediators
- 186 certified dependency mediators
- There was no statewide certification of appellate mediators.
In an effort to keep pace with this rapidly evolving field, the Supreme Court of Florida has created four standing ADR Committees/Boards. All of the following Committees/Boards are staffed by the DRC:
• The Committee on Alternative Dispute Resolution Rules & Policy is charged with monitoring and making recommendations to improve and expand the use of court-connected ADR through the adoption of statutes, rules, policies, and procedures;
• The Mediator Ethics Advisory Committee (MEAC) issues advisory ethics opinions to certified and court-appointed mediators;
• The Mediator Qualifications Board (MQB) is responsible for hearing grievances filed against certified mediators and reviewing mediator good moral character issues;
• The Mediation Training Review Board (MTRB) reviews complaints against certified mediation training programs and training program principals.
- In 2000, it cost the state about $211,000 to add a circuit judgeship (this includes the salaries and benefits for a judge and secretary). This amount does not include the locally borne costs of office space, courtrooms, security, etc. (Source: Office of the State Courts Administrator 2000)
- Only one percent of civil cases filed in Florida go to trial. (Source: Office of State Courts Administrator 1994)
- A statistical profile developed by Florida's Dispute Resolution Center shows that 92 percent of family mediators have either law degrees or other graduate degrees and 85 percent of county mediators have degrees.
- All of the state's 20 circuits send some portion of their caseload to mediation. However, they vary greatly in the type of program set up for court referrals.
- In 1997 the County Civil Mediations Programs of Florida referred 44,350 cases to mediation, mediated 33,148, and 22,831 cases reached mediation agreements.
- The Center for Public Resources' Institute for Dispute Resolution's Corporate Pledge has been adopted by 4,000 of the nations largest companies and their 2,800 subsidiaries. Its "Law Firm Pledge" has been signed by 1,560 law firms, including 400 of the 500 largest law firms in the U.S. (Source: ABA Issues Handbook: 1999)
- A mid-1996 study by the Center for Public Resources' Institute for Dispute Resolution found that 65% of large law firms responding to the study had formalized ADR within their practice. Among all respondents, ADR is used in 16.7% of their cases, up from 8% in 1993, of which more than 57% is nonbinding. (Source: ABA Issues Handbook: 1999)
- Congress passed S.1732, which authorizes the continuation of courtannexed arbitration programs piloted in 20 U.S. District Courts;
- In 1999 more than 95,000 cases were filed with the American Arbitration Association, up from 45,000 in 1985 and 78,000 in 1997. (Source: ABA Issues Handbook: 1999)
- According to a recent study of 449 cases processed by four major ADR providers, 78% of the cases that went to mediation were settled, the costs and time of mediation were less, and the respondent's satisfaction with the mediation was greater than with arbitration. (Source: ABA Issues Handbook: 1999)
Prepared by The Florida Bar Department of Public Information and Bar Services with assistance by the Florida Dispute Resolution Center.
Revised January 2009