Section thinks all mediators should be certified
Section thinks all mediators should be certified
Mark D. Killian
Should all those who mediate disputes filed in Florida’s family and circuit civil court divisions be Florida Supreme Court certified mediators?
The Bar’s Alternative Dispute Resolution Section thinks so and has forwarded such a recommendation to the Supreme Court Committee on ADR Rules and Policy.
“As professional mediators, we believe that if there are people out there mediating — serving our courts, serving the public, serving our judges, our judicial system — there needs to be some level of competence and understanding of the ethical rules and some control over those people,” said Robert Cole of Jacksonville, the section’s chair-elect.
The ADR Section Executive Council voted 13-5 to require Supreme Court certification to mediate filed cases at the Bar’s January Winter Meeting in Orlando. The council also forwarded another recommendation that would — short of requiring certification — bind all mediators to the Supreme Court rules on mediator ethics and discipline.
The Executive Council’s action did not come without opposition.
Section member and certified mediator Karen Evans of Miami said mandating certification would be an affront to “party self-determination,” and “some of the best mediators around” are not certified.
“I think requiring only people who are certified mediators to mediate cases pending in court is a mistake,” Evans said. “When you think about the fact that to become a certified mediator, you don’t even have to mediate; you have to take a 40-hour training [course] and you have to observe. When you get recertified every two years, again, you don’t even have to mediate a case in those two years; you simply have to take your continuing mediator ethics credits.”
While mediator training is important, she said, “I do not think it is the be all and end all.”
Section member Jesse Diner of Ft. Lauderdale was “vehemently opposed” to the recommendation, noting The Florida Bar “has really stayed away” from mandatory certification for lawyers.
“This smacks of, basically, exclusion,” said Diner, a former Bar president. “There are a lot of capable lawyers who mediate cases — to either a greater extent or a lesser extent — but are noncertified.”
Diner characterized the recommendation as “fraught with problems” and warned the section to brace for “blowback.”
Lawrence Kolin of Maitland, however, noted the Supreme Court ADR Rules and Policy Committee informed the section it was considering mandatory certification for filed cases and asked for input.
In November 2016, Cole said, the section surveyed its 928 members (of which 31 percent responded) and found:
• A large majority (91 percent) of respondents said all individuals mediating disputes filed in the state circuit civil division/family division and in federal courts should be subject to the Florida Supreme Court ethical standards for certified and court appointed mediators.
• Over two-thirds (68 percent) of respondents believe that, in all filed circuit civil disputes, the parties should mediate with a Florida Supreme Court certified circuit civil mediator.
• Over three-fifths (61 percent) of respondents believe that, in all disputes filed in the family division, the parties should mediate with a Florida Supreme Court certified family mediator.
Of the 284 section members who returned the survey, 88 percent indicated that they were Florida Supreme Court certified mediators.
“Mediators are professionals,” said Kolin, adding that Florida doesn’t just let anybody “hang a shingle” and call themselves a lawyer.
“How hard is it to take a 40-hour course?” Kolin asked. “Why are we giving a pass to these people? Let them take the course and enter the marketplace.”
Others noted the restriction would only apply to filed cases. Those with disputes that had yet to enter the court system would be free to choose whomever they wanted to mediate their disagreements.
Section member Sandy Myers of West Palm Beach said mediators in Florida are one step below the court system and have an obligation to the judicial system to be professional.
“If the courts can’t rely on professional mediators, they are in trouble,” said Myers, noting that more than 90 percent of cases in Palm Beach County are settled by mediators, and if mediators did not do a good job “the courts in my area would be flooded.”
“Are we professionals or are we just going to be somebody that is floating down the stream?” Myers asked. “We have to be answerable to people; we have to have a strict code.”
Cole noted the Executive Council’s action is just the first step in a long process and, if the Supreme Court Committee on ADR Rules and Policy forwards any recommendations to the Supreme Court for consideration, there will be plenty of opportunity for input.