In re Alternative Dispute Resolution Rules & Policy Committee on Amendments to Florida Rules for Certified & Court-Appointed Mediators

969 So. 2d 1003, 32 Fla. L. Weekly Supp. 726, 2007 Fla. LEXIS 2172, 2007 WL 3376904
CourtSupreme Court of Florida
DecidedNovember 15, 2007
DocketNo. SC05-998
StatusPublished
Cited by2 cases

This text of 969 So. 2d 1003 (In re Alternative Dispute Resolution Rules & Policy Committee on Amendments to Florida Rules for Certified & Court-Appointed Mediators) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Alternative Dispute Resolution Rules & Policy Committee on Amendments to Florida Rules for Certified & Court-Appointed Mediators, 969 So. 2d 1003, 32 Fla. L. Weekly Supp. 726, 2007 Fla. LEXIS 2172, 2007 WL 3376904 (Fla. 2007).

Opinion

PER CURIAM.

In response to the Court’s request, the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (Committee) has submitted amendments to the Florida Rules for Certified and Court-Appointed Mediators (Mediator Rules) that incorporate the point-based system for mediator certification approved on an interim basis in the Court’s prior opinion in this case. We adopt the rule amendments as proposed by the Committee, specially removing the requirement of Florida Bar membership for certified circuit court mediators.1

BACKGROUND

Previously in this case, we adopted, with minor modifications, proposed amendments to the Mediator Rules, and approved new point-based mediator certification requirements, as modified for circuit court mediators, outlined in an administrative order. In re Petition of the Alternative Dispute Resolution Rules and Policy Comm, on Amendments to Fla. Rules for Certified and Court-Appointed Mediators, 931 So.2d 877 (Fla.2006) [hereinafter Amendments ]; In re Rules Governing Certification of Mediators, Fla. Admin. Order No. AOSC06-9 (May 11, 2006) [hereinafter Administrative Order No.

[1004]*1004AOSC06-9]. We explained in our prior opinion:

[T]he practical effect of this new point system is to remove the more formal mandatory education and profession-based requirements ... and to allow applicants to obtain certification in a variety of different ways more directly related to the actual skills and experience the Committee has determined to be necessary for service as an effective mediator.

Amendments, 931 So.2d at 880.

The action we took in our first opinion varied from the Committee’s original proposals as follows. First, although, as part of new point system, the Committee proposed the removal of the Florida Bar membership requirement for certified circuit court mediators, we retained that requirement until we could more fully consider the issue. We were hesitant to remove the Bar membership requirement without input from The Florida Bar, which had not filed a comment. Therefore, we directed the Bar to file a comment addressing the issue. Id. at 880-81. Second, although the Committee proposed that the new point system be outlined in an administrative order, we determined that the point system should be incorporated into the rules instead and directed the Committee to propose such rule amendments. Id. at 882. However, we approved the point system in concept and approved, on an interim basis, its inclusion in the new administrative order governing certification of mediators. Finally, we did not adopt proposed procedures for review by the Chief Justice of disciplinary action against mediators, and instead modified the rule to provide that review by the Chief Justice will be in accordance with procedures adopted pursuant to administrative order. Id. at 884.2

As requested by the Court, the Committee submitted amendments that incorporate into the rules the new mediator certification point-based requirements, including the retained Bar membership requirement for certified circuit court mediators. However, the Committee continues to strongly urge the Court to remove the Bar membership requirement. As requested by the Court, the Bar also filed its comment addressing the Bar membership requirement. The Bar takes the position that the requirement should be retained for circuit court mediators, but that the applicant also should be required to have been a member in good standing of The Florida Bar or the bar of another jurisdiction for the five years immediately preceding an application.

The rule amendments, along with an explanation of the Committees and the Bars positions on the Bar membership requirement, were published for comment in The Florida Bar News. Several comments were received by the Court. The Court held oral argument on May 7, 2007.

After considering the Committee’s proposals and the comments filed, and hearing oral argument, we amend the Mediator Rules as proposed by the Committee. Ad[1005]*1005ditionally, we amend, on our own motion, Florida Rule of Civil Procedure 1.720.

DISCUSSION

As noted above, in our prior opinion, we resolved to reevaluate the Bar membership requirement for certified circuit court mediators after The Florida Bar had an opportunity to respond to the Committee’s recommendation that the requirement be removed. Additionally, we determined that the new mediator point system previously adopted by administrative order should be incorporated into the Mediator Rules. Each matter is discussed in turn below.

Bar Membership Requirement for Certified Circuit Court Mediators

The Florida Bar membership requirement for certified circuit court mediators is currently found in Administrative Order No. SC06-9:

An applicant must be a member in good standing of The Florida Bar with at least five years of Florida practice and be an active member of The Florida Bar within one 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 five years immediately preceding the year certification is sought.

Administrative Order No. SC06-9 at 4. Prior to its inclusion in the administrative order, the Bar membership requirement was found in former rule 10.100(c), which provided the certification requirements for circuit court mediators.

The Florida Bar did not file a comment in response to the Committee’s original proposal to remove the Bar membership requirement; and, of all the comments received by the Court only the comment filed by the Bar at the direction of the Court and two other comments by members of The Florida Bar urge retaining this requirement. In moving to a true point-based certification system for all categories of mediators except circuit court mediators, we recognized that “the general consensus in the alternative dispute resolution field is that possession of academic degrees, including law degrees, does not necessarily predict an individuals ability to be a good mediator.” Amendments, 931 So.2d at 881. According to the Committee, Florida is currently in a minority of states that require legal training as a prerequisite to being certified as a circuit court mediator. We understand that by continuing to urge the Court to remove this requirement, the Committee seeks to ensure that Florida maintains its place of preeminence in the alternative dispute resolution field in the United States. After considering the Bars comment and the Committees well-reasoned response, as well as the numerous comments in this case in support of the Committees position, we now remove the Bar membership requirement for certified circuit court mediators and amend the rules to provide a true point-based mediator certification system for our state.

However, in eliminating the Bar membership requirement for certified circuit court mediators, we also recognize that there may be situations in which a party to a circuit court mediation may object to the appointment of a mediator who lacks legal training. In such situations, we believe that the circuit court must necessarily appoint a mediator who is a member of The Florida Bar.

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Related

Amendments to Fl. Rules for Cert. Mediators
993 So. 2d 505 (Supreme Court of Florida, 2008)

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Bluebook (online)
969 So. 2d 1003, 32 Fla. L. Weekly Supp. 726, 2007 Fla. LEXIS 2172, 2007 WL 3376904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alternative-dispute-resolution-rules-policy-committee-on-amendments-fla-2007.