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Proposed certified mediator rules

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Proposed certified mediator rules


The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy has submitted to the Florida Supreme Court proposed amendments to the Florida Rules for Certified and Court Appointed Mediators. The proposed amendments address Mediator Qualifications (Fla. R. Med. 10.100 – 10.130), Standards of Professional Conduct (Fla. R. Med. 10.360, 10.370, and 10.420), and Discipline (Fla. R. Med. 10.800 – 10.880). Technical amendments also are proposed to rules 10.720 and 10.740. The court invites all interested persons to comment on the committee’s proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before August 1, with a certificate of service verifying that a copy has been served on the committee chair, Judge Shawn L. Briese, 125 East Orange Avenue, Room 106, Daytona Beach 32118, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA

IN RE: PETITION OF THE ALTERNATIVE DISPUTE RESOLUTION RULES AND POLICY COMMITTEE ON AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT APPOINTED MEDIATORS, CASE NO. SC05-998
Proposed Amendments
Florida Rules for Certified and Court-Appointed Mediators

Part I. Mediator Qualifications
Rule 10.100. General Qualifications Certification Requirements
(a) General. For certification as a county court, family, circuit court, or dependency mediator, a mediator must be at least 21 years of age, and be of good moral character.
(b) (a) County Court Mediators. For initial certification as a mediator of county court matters, an applicant must satisfy the requirements adopted pursuant to Administrative Order of the Chief Justice. Such order shall establish minimum requirements in the categories of training, education, and mentorship. For certification a mediator of county court matters must be certified as a circuit court or family mediator or:
(1) complete a minimum of 20 hours in a training program certified by the supreme court;
(2) observe a minimum of 4 county court mediation conferences conducted by a court-certified mediator and conduct 4 county court mediation conferences under the supervision and observation of a court-certified mediator; and
(3) be of good moral character.
(c) (b) Family Mediators. For initial certification as a mediator of family and dissolution of marriage issues, an applicant must satisfy the requirements adopted pursuant to Administrative Order of the Chief Justice. Such order shall establish minimum requirements in the categories of training, education, experience, and mentorship. For certification a mediator of family and dissolution of marriage issues must:
(1) complete a minimum of 40 hours in a family mediation training program certified by the supreme court;
(2) have a master’s degree or doctorate in social work, mental health, or behavioral or social sciences; be a physician certified to practice adult or child psychiatry; or be an attorney or a certified public accountant licensed to practice in any United States jurisdiction; and have at least 4 years practical experience in one of the aforementioned fields or have 8 years family mediation experience with a minimum of 10 mediations per year;
(3) observe 2 family mediations conducted by a certified family mediator and conduct 2 family mediations under the supervision and observation of a certified family mediator; and
(4) be of good moral character.
(d) (c) Circuit Court Mediators. For initial certification as a mediator of circuit court matters, other than family matters, an applicant must satisfy the requirements adopted pursuant to Administrative Order of the Chief Justice. Such order shall establish minimum requirements in the categories of training, education, experience, and mentorship. For certification a mediator of circuit court matters, other than family matters, must:
(1) complete a minimum of 40 hours in a circuit court mediation training program certified by the supreme court;
(2) be a member in good standing of The Florida Bar with at least 5 years of Florida practice and be an active member of The Florida Bar within 1 year of application for certification; or be a retired trial judge from any United States jurisdiction who was a member in good standing of the bar in the state in which the judge presided for at least 5 years immediately preceding the year certification is sought;
(3) observe 2 circuit court mediations conducted by a certified circuit mediator and conduct 2 circuit mediations under the supervision and observation of a certified circuit court mediator; and
(4) be of good moral character.
(e) (d) Dependency Mediators. For initial certification as a mediator of dependency matters, as defined in Florida Rules for Juvenile Procedure 8.290, an applicant must satisfy the requirements adopted pursuant to Administrative Order of the Chief Justice. Such order shall establish minimum requirements in the categories of training, education, experience, and mentorship. For certification a mediator of dependency matters, as defined in Florida Rules for Juvenile Procedure 8.290(a) must:
(1) complete a supreme court certified dependency mediation training program as follows:
(A) 40 hours if the applicant is not a certified family mediator or is a certified ­family mediator who has not mediated at least 4 dependency cases; or
(B) 20 hours if the applicant is a certified family mediator who has mediated at least 4 dependency cases; and
(2) have a master’s degree or doctorate in social work, mental health, behavioral sciences or social sciences; or be a physician licensed to practice adult or child psychiatry or pediatrics; or be an attorney licensed to practice in any United States jurisdiction; and
(3) have 4 years experience in family and/or dependency issues or be a licensed mental health professional with at least 4 years practical experience or be a supreme court certified family or circuit mediator with a minimum of 20 mediations; and
(4) observe 4 dependency mediations conducted by a certified dependency mediator and conduct 2 dependency mediations under the supervision and observation of a certified dependency mediator; and
(5) be of good moral character.
(f) Referral for Discipline. If the certification or licensure necessary for any person to be certified as a family or circuit mediator is suspended or revoked, or if the mediator holding such certification or licensure is in any other manner disciplined, such matter shall be referred to the Mediator Qualifications Board for appropriate action pursuant to rule 10.800.
(g) (f) Special Conditions. Mediators who have been duly certified as circuit court or family mediators before July 1, 1990, shall be deemed qualified as circuit court or family mediators pursuant to these rules. Certified family mediators who have mediated a minimum of 4 dependency cases prior to July 1, 1997, shall be granted temporary certification and may continue to mediate dependency matters for no more than 1 year from the time that a training program pursuant to subdivision (d)(1)(B) is certified by the supreme court. Such mediators shall be deemed qualified to apply for certification as dependency mediators upon successful completion of the requirements of subdivision (d)(1)(B) and (d)(5) of this rule. Mediators who are certified prior to [the effective date of rule], shall not be subject to the point requirements for any category of certification in relation to which continuing certification is maintained.
Rule 10.110. Good Moral Character
(a) – (b) (No Change)
(c) Certification. The following shall apply in relation to determining the good moral character required for initial and continuing mediator certification:

(1) The applicant’s or mediator’s good moral character may be subject to inquiry when the applicant’s or mediator’s conduct is relevant to the qualifications of a mediator.

(2) An applicant for initial certification who has been convicted of a felony shall not be eligible for certification until such person has received a restoration of civil rights.

(3) An applicant for initial certification who is serving a sentence of felony probation shall not be eligible for certification until termination of the period of probation.

(4) In assessing whether the applicant’s or mediator’s conduct demonstrates a present lack of good moral character the following factors shall be relevant:

(A) the extent to which the conduct would interfere with a mediator’s duties and responsibilities;

(B) the area of mediation in which certification is sought or held ;

(C) the factors underlying the conduct;

(D) the applicant’s or mediator’s age at the time of the conduct;

(E) the recency of the conduct;

(F) the reliability of the information concerning the conduct;

(G) the seriousness of the conduct as it relates to mediator qualifications;

(H) the cumulative effect of the conduct or information;

(I) any evidence of rehabilitation;

(J) the applicant’s or mediator’s candor ; and

(K) denial of application, disbarment , or suspension from any profession.
(d) Decertification. A certified mediator shall be subject to decertification for any knowing and willful incorrect material information contained in any mediator application. There is a presumption of knowing and willful violation if the application is completed, signed, and notarized.
Rule 10.120 Notice of Change of Address or Name.
(a) Address Change. Whenever any certified mediator changes residence or mailing address, that person must within 30 days thereafter notify the center of such change.
(b) Name Change. Whenever any certified mediator changes legal name, that person must within 30 days thereafter notify the center of such change.
Rule 10.130 Notification of Conviction.
(a) Definition. “ Conviction” means a determination of guilt resulting from a plea of a felony or misdemeanor of the first degree, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. All Florida, federal, out-of-state, military, and foreign convictions as an adult or county ordinances that bring within the municipal or county code the violation of a state statute or statutes shall qualify as convictions.
(b) Report of Conviction. A conviction shall be reported in writing to the center within 30 days of such conviction. A report of conviction shall include a copy of the order or orders pursuant to which the conviction was entered.
(c) Suspension. Upon receipt of a report of felony conviction, the center shall immediately suspend all certifications and refer the matter to the qualifications complaint committee.
(d) Referral. Upon receipt of a report of a misdemeanor conviction, the center shall refer the matter to the qualifications complaint committee for appropriate action. If the center becomes aware of a conviction prior to the required notification, it shall refer the matter to the qualifications complaint committee for appropriate action.
Rule 10.360 Confidentiality.
(a) Scope. A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required by law or is agreed to by all parties or where a mediation communication is willfully used to threaten a crime of violence.
(b) – (c) (No Change)
Rule 10.370. Professional Advice , or Opinions , or Information
(a) – (b) (No Change)
(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.
Rule 10.420 Conduct of Mediation
(a) Orientation Session. Upon commencement of the mediation session, a mediator shall describe the mediation process and the role of the mediator, and shall inform the mediation participants that:

(1) – (2) (No Change)

(3) communications made during the process are confidential, except where disclosure is required or permitted by law.
(b) – (c) (No Change)
Rule 10.720. Definitions

(a) – (b) (No Change)

(c) Complaint. Formal submission of an alleged violation of the Rules for Certified and Court-Appointed Mediators, including allegations of a lack of good moral character. A complaint may originate from any person or from the center Center.

(d) – (j) (No Change)
Rule 10.740. Jurisdiction

(a) (No Change)

(b) Qualifications Complaint Committee. The qualifications complaint committee shall have jurisdiction over all matters referred pursuant to rule 10.800. The qualifications complaint committee shall have such jurisdiction and powers as are necessary to conduct the proper and speedy investigation and disposition of any good moral character complaint or other matter referred by the center Center. The judge or attorney presiding over the qualifications complaint committee shall have the power to compel the attendance of witnesses, to take or to cause to be taken the depositions of witnesses, and to order the production of records or other documentary evidence, and the power of contempt. The qualifications complaint committee shall perform its investigatory function and have concomitant power to resolve cases prior to panel referral.

(c) – (d) (No Change)
Rule 10.800. Good Moral Character; Professional Discipline
(a) Good Moral Character.

(1) Prior to approving an applicant for certification or renewal as a mediator the center Center shall review the application to determine whether the applicant appears to meet the standards for good moral character. If the center’s Center’s review of an application for certification or renewal raises any questions regarding the applicant’s good moral character, the center Center shall request the applicant to supply additional information as necessary. Upon completing this extended review, the center Center shall forward the application and supporting material as a complaint to the qualifications complaint committee.

(2) If the center Center becomes aware of any information concerning a certified mediator which could constitute credible evidence of a lack of good moral character, the center Center shall refer such information as a complaint to the qualifications complaint committee.

(3) – (5) (No Change)

(b) Professional Discipline Licenses and Certifications.
(1) A certified mediator shall inform the center, in writing, of the change in status of any professional license held by the mediator within 30 days of such change.
(2) Upon becoming aware that a certified mediator has been disciplined by a professional organization of which that mediator is a member, the center Center shall refer the matter to the qualifications complaint committee.
Rule 10.810. Committee Process
(a) – (e) (No Change)
(f) Service. The center shall send serve a copy of the list of alleged rule violations prepared by the committee, a copy of the complaint, and a copy of these rules to the mediator or applicant in question. Service on the mediator or applicant shall be made by registered or certified mail addressed to the mediator or applicant at the mediator’s or applicant’s place of business or residence on file with the center. Mailing to such an address shall constitute service.
(g) – (i) (No Change)
(j) Committee Meeting with the Mediator or Applicant. Notwithstanding any other provision in this rule, at any time while the committee has jurisdiction, it may meet with the complainant and the mediator or applicant , jointly or separately, in an effort to resolve the matter. This resolution may include sanctions if agreed to by the mediator or applicant. If sanctions are accepted, all relevant documentation shall be forwarded to the center. Such conferences shall be in person, by video-conference or teleconference at the discretion of the committee.
(k) – (l) (No Change)
(m) Probable Cause Found. If probable cause exists, the committee may draft formal charges and forward such charges to the center for assignment to a panel. In the alternative, the committee may decide not to pursue the case by filing a short and plain statement of the reason (s) or reasons for non-referral and so advise the complainant and the mediator or applicant in writing.
(n) – (o) (No Change)
Rule 10.820. Hearing Procedures
(a) (No Change)
(b) Hearing. The center shall schedule a hearing not more than 90 days nor less than 30 days from the date of notice of assignment of the matter to the panel. At any time prior to the hearing, the panel may accept an admission to any or all charges and impose sanctions upon the mediator. The panel shall not be required to physically meet in person to accept such admission.
(c) (No Change)
(d) Procedures for Hearing. The procedures for hearing shall be as follows:

(1) No hearing shall be conducted without 5 panel members physically present.

(2) – (4)
(e) – (n)
Rule 10.830. Sanctions
(a) (No Change)
(b) Conviction of Felony. If the panel finds that a certified mediator has a felony conviction, it shall decertify the mediator for a period of not less than two years or until restoration of civil rights, which ever comes later. In order to become reinstated, such decertified mediator, must comply with the requirements of subdivision (g).
(b) (c) Failure to Comply. If there is reason to believe that the mediator failed to timely comply with any imposed sanction, a hearing shall be held before a panel convened for that purpose within 60 days of the date when the center learned of the alleged failure to comply. The hearing shall also include any additional alleged failures to comply of which the center becomes aware prior to the date of the hearing. The holding of a hearing shall not preclude a subsequent hearing on an alleged failure occurring after the first alleged failure. Any suspension in effect at the time of the discovery of the violation by the center shall continue in effect until a decision is reached at the hearing. A finding of the panel that there was a willful failure to substantially comply with any imposed sanction shall result in the decertification of the mediator.
(c) (d) Decertified Mediators. If a mediator has been decertified or barred from service pursuant to these rules, the mediator shall not thereafter be certified or assigned to mediate a case pursuant to court rule or be designated as mediator pursuant to court rule unless reinstated.
(d) (e) Decision to be Filed. Upon making a determination that discipline is appropriate, the panel shall promptly file with the center a copy of the decision including findings and conclusions certified by the chair of the panel. The center shall promptly mail to all parties notice of such filing, together with a copy of the decision.
(e) (f) Notice to Circuits. The center shall notify all circuits of any mediator who has been decertified or suspended unless otherwise ordered by the Supreme Court of Florida.
(f) (g) Publication. Upon the imposition of sanctions, the center shall publish the name of the mediator, a short summary of the rule or rules which were violated, the circumstances surrounding the violation, and any sanctions imposed.
(g) (h) Reinstatement. Except if inconsistent with rule 10.110, a mediator who has been suspended or decertified may be reinstated as a certified mediator. Except as otherwise provided in the decision of the panel, no application for reinstatement may be tendered within 2 years after the date of decertification. The reinstatement procedures shall be as follows:

(1) A petition for reinstatement, together with 3 6 copies, shall be made in writing, verified by the petitioner, and filed with the center.

(2) – (4) (No Change)
Rule 10.880. Supreme Court Chief Justice Review
(a) Right of Review. Any mediator or applicant found to have committed a violation of these rules or is otherwise sanctioned by a hearing panel shall have a right of review of the action taken by the panel. Review of this type shall be by under the jurisdiction of the Chief Justice of the Supreme Court of Florida. Notice of review shall be filed with the clerk of the Supreme Court of Florida. A mediator shall have no right of review of any solution reached pursuant to rule 10.810(j)
(b) Rules of Procedure. The Florida Rules of Appellate Procedure shall be applicable to review by the Florida Supreme Court. Review shall be commenced by filing a Notice of Review of Mediator Disciplinary Action and shall be conducted pursuant to the following procedures:
(1) The jurisdiction to seek review of disciplinary action shall be invoked by filing 2 copies of a notice of review filed with the clerk of the Supreme Court within 30 days of the panel’s decision. A copy shall also be provided to the center.
(2) The notice of review shall be substantially in the form prescribed by rule 9.900(a), Florida Rules of Appellate Procedure. A conformed copy of the panel decision shall be attached to the notice.
(3) Appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220, Florida Rules of Appellate Procedure, shall be served within 30 days of filing the notice of review. Additional briefs shall be served as prescribed by rule 9.210. A transcript shall not be filed with the clerk unless ordered by the Chief Justice.

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