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Should those who mediate disputes in family and circuit civil court divisions be certified?

Senior Editor Regular News

Should those who mediate disputes in family and circuit civil court divisions be certified?

Senior Editor

Proposals have been floated to consider mandating the use of court-certified mediators, and the Alternative Dispute Resolution Section is willing to do what its members do best — work with other sections to forge a meaningful response.

Christine Magee “At our hearts, we are mediators,” said ADR Section Chair Christine Magee of Satellite Beach. “We facilitate resolution, we don’t thrive on conflict.”

Florida is considered a pioneer in alternative dispute resolution, and the state claims one of the most comprehensive court-connected mediation programs in the country. Under current rules, parties are free to use any mediator that all parties find acceptable.

But the Supreme Court Committee on ADR Rules and Policy is working on a proposal to require the use of certified mediators in the county, circuit civil, family law, and dependency court systems, and the notion has sparked concerns.

The committee’s recommendation will trigger a public comment period if the Supreme Court acts on the proposal, and the ADR Section has promised to reach out to other sections to help shape a comment, Magee said.

“Or at least find some kind of essential fundamental principles that we could all agree on,” Magee said. “And then offer those back to the Supreme Court as a basis of a, maybe, omnibus comment.”

Other sections would be free to use the omnibus comment as a starting point to base any objections, Magee said.

The proposal to require certified mediators elicited some strong comments when the ADR Section’s Executive Council considered it at the Winter Meeting in 2017. Former Bar President Jesse Diner, a section member from Ft. Lauderdale, complained that the proposal “smacks of, basically, exclusion.”

The Executive Council voted 13-5 to support mandating Supreme Court certification to mediate in all filed cases. The council also forwarded a recommendation, short of requiring certification, to bind all mediators to the Supreme Court rules on mediator ethics and discipline.

The move came on the heels of a November 2016 survey of the section’s 928 members that resulted in a healthy, 31 percent response rate. It found:

• 91 percent approval for requiring all individuals mediating disputes filed in the circuit civil division/family division and federal courts to be subject to Supreme Court ethical standards for certified and court-appointed mediators.

• 68 percent approval for requiring the use of court-certified civil mediators for filed cases in circuit civil disputes.

• 61 percent approval for requiring certified family mediators for cases in family court divisions.

Of the 284 section members who responded to the survey, 88 percent identified themselves as certified mediators.

Former ADR Section Chair Robert Cole of Jacksonville said it’s not clear when the Committee on ADR Rules and Policy will issue the proposal, but he said it might include “carve outs” for some legal practice areas, such as maritime law.

Some admiralty and maritime lawyers have complained that there aren’t enough certified mediators in their specialty to make a mandate workable.

It’s not likely that ADR Section member attitudes have changed significantly since the survey was taken nearly two years ago, given the strength of the responses, Cole said. Cole said he supports a mandate for certified mediators, once a case has been filed and it falls under the jurisdiction of the courts.

“It’s not about turf protection, business, or economics,” Cole said. “The ultimate goal is to make sure that we have qualified capable mediators who understand the mediation statutes and rules as well as the importance of applicable ethics and standards.”

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