HB 395

1	A bill to be entitled
2	An act relating to collaborative process; creating part II
3	of ch. 44, F.S.; providing a short title; providing
4	purposes; providing definitions; providing that a
5	collaborative process in which parties attempt to resolve
6	a matter pursuant to a collaborative participation
7	agreement without court intervention begins with a
8	collaborative participation agreement among the parties;
9	providing that a collaborative participation agreement
10	tolls statutes of limitations periods during the time it
11	remains in effect; providing that collaborative
12	communications are confidential unless otherwise provided;
13	providing exceptions; providing that information that is
14	otherwise admissible or subject to discovery does not
15	become inadmissible or protected from discovery by reason
16	of its disclosure or use in a collaborative process;
17	providing that a party that discloses or makes a
18	representation about a privileged collaborative
19	communication waives that privilege but only to the extent
20	necessary for the other party to respond to the disclosure
21	or representation; providing for sanctions for breaches of
22	confidentiality; providing limitations periods for seeking
23	such sanctions; providing immunity from sanctions for
24	certain actions; providing a directive to the Division of
25	Statutory Revision; amending ss. 44.1011, 44.102, and
26	44.106, F.S.; conforming provisions to changes made by
27	this act; providing an effective date.
28
29	Be It Enacted by the Legislature of the State of Florida:
30
31	Section 1.  Part II of chapter 44, Florida Statutes,
32	consisting of sections 44.501, 44.502, 44.503, 44.504, 44.505,
33	44.506, and 44.507, is created to read:
34	PART II
35	COLLABORATIVE PROCESS
36	44.501  Short title.--This part may be cited as the
37	"Collaborative Process Act."
38	44.502  Purposes.--It is the policy of the state to
39	encourage the peaceful resolution of disputes and the early
40	settlement of pending litigation through voluntary settlement
41	procedures. The collaborative process is a unique nonadversarial
42	method that preserves a working relationship between the parties
43	and reduces the emotional and financial toll of litigation.
44	44.503   Definitions.--As used in this part, the term:
45	(1)  "Collaborative attorney" means an attorney licensed to
46	practice law in the state who satisfies any training and other
47	requirements mandated by the Supreme Court to enable the
48	attorney to represent clients in the collaborative process.
49	(2)  "Collaborative communication" means any oral or
50	written statement, or a nonverbal act, that is made:
51	(a)  Following the execution by the parties of a
52	collaborative participation agreement until the time the
53	collaborative process terminates or final agreement is reached;
54	and
55	(b)  For the purposes of conducting, participating in,
56	continuing, or otherwise furthering the collaborative process.
57	(3)  "Collaborative participant" means the parties,
58	collaborative attorneys, and nonparty participants in the
59	collaborative process.
60	(4)  "Collaborative participation agreement" means a
61	written contract entered into pursuant to this part and the
62	requirements adopted by the Supreme Court pertaining to the
63	collaborative process.
64	(5)  "Collaborative process" means a process in which
65	parties, represented by collaborative attorneys, attempt to
66	resolve a matter pursuant to a collaborative participation
67	agreement without court intervention.
68	(6)  "Court" means a tribunal of competent jurisdiction
69	acting in an adjudicative capacity in which a judicial officer,
70	after the presentation of evidence, testimony, and legal
71	argument, renders a binding decision affecting a party's
72	interests in a matter.
73	(7)  "Matter" means a dispute, transaction, claim, problem,
74	or issue for resolution described in a collaborative
75	participation agreement.
76	(8)  "Nonparty participant" means a person, other than a
77	party or collaborative attorney, who is retained or serves as an
78	advisor to a party in the collaborative process.
79	(9)  "Party" means a person who enters into a collaborative
80	participation agreement and whose consent is necessary to
81	resolve the matter.
82	(10)  "Person" means an individual, corporation,
83	partnership, association, governmental subdivision, agency, or
84	any other legal or commercial entity.
85	(11)  "Proceeding" means a judicial, administrative, or
86	other adjudicative process before a tribunal, including related
87	prehearing and posthearing motions, conferences, and discovery.
88	44.504  Commencement of collaborative process.--The
89	collaborative process shall commence, whether or not a
90	proceeding is pending, when the parties enter into a
91	collaborative participation agreement.
92	44.505  Tolling of statutes of limitations.--The execution
93	of a collaborative participation agreement shall toll all legal
94	time periods applicable to legal rights and issues under law
95	between the parties for the amount of time the collaborative
96	participation agreement remains in effect. This section applies
97	to all applicable statutes of limitations, filing deadlines, and
98	other time limitations imposed by law.
99	44.506  Confidentiality; privilege; exceptions.--
100	(1)  Except as provided in this section and unless the
101	parties agree otherwise in writing, all collaborative
102	communications shall be confidential. A collaborative
103	participant shall not disclose a collaborative communication to
104	any person other than another collaborative participant. A
105	violation of this section during the collaborative process may
106	be sanctioned as agreed to in writing by the parties or a party
107	may terminate the collaborative process. Once the collaborative
108	process has terminated, a violation of this section may be
109	sanctioned as provided in s. 44.507.
110	(2)  A collaborative party has a privilege to refuse to
111	testify and to prevent any other person from testifying in a
112	subsequent proceeding regarding collaborative process
113	communications.
114	(3)(a)  Notwithstanding subsections (1) and (2), there
115	shall be no confidentiality or privilege attached to a signed
116	written agreement reached during a collaborative process, unless
117	the parties agree otherwise in writing, or for any collaborative
118	communication:
119	1.  That is willfully used to plan a crime, commit or
120	attempt to commit a crime, conceal ongoing criminal activity, or
121	threaten violence;
122	2.  That requires a mandatory report pursuant to chapter 39
123	or chapter 415 solely for the purpose of making the mandatory
124	report to the entity requiring the report;
125	3.  Offered to report, prove, or disprove professional
126	malpractice or misconduct occurring during the collaborative
127	process, solely for the purpose of the professional malpractice,
128	misconduct, or ethics proceeding; or
129	4.  Offered for the limited purpose of establishing or
130	refuting enforceability of an agreement reached during the
131	collaborative process.
132	(b)  A collaborative process communication disclosed under
133	any provision of subparagraph (a)2., subparagraph (a)3., or
134	subparagraph (a)4. remains confidential and is not discoverable
135	or admissible for any other purpose, unless otherwise permitted
136	by this section.
137	(4)  Information that is otherwise admissible or subject to
138	discovery does not become inadmissible or protected from
139	discovery by reason of its disclosure or use in a collaborative
140	process.
141	(5)  A party that discloses or makes a representation about
142	a privileged collaborative communication waives that privilege,
143	but only to the extent necessary for the other party to respond
144	to the disclosure or representation.
145	44.507  Confidentiality; sanctions.--
146	(1)  Once the collaborative process has terminated, if a
147	collaborative participant knowingly and willfully discloses a
148	collaborative communication in violation of s. 44.506, the
149	participant making such a disclosure shall be subject to the
150	following:
151	(a)  Equitable relief.
152	(b)  Compensatory damages.
153	(c)  Attorney's fees and costs incurred during the
154	collaborative process.
155	(d)  Reasonable attorney's fees and costs incurred by the
156	application for remedies under this section.
157	(2)  Notwithstanding any other law, an application for
158	relief filed under this section may not be commenced later than
159	2 years after the date on which the party had a reasonable
160	opportunity to discover the breach of confidentiality but in no
161	case more than 4 years after the date of the breach.
162	(3)  Any collaborative participant shall not be subject to
163	a civil action under this section for lawful compliance with the
164	provisions of s. 119.07.
165	Section 2.  The Division of Statutory Revision of the
166	Office of Legislative Services is directed to redesignate
167	chapter 44, Florida Statutes, as "Alternatives to Judicial
168	Action" and to designate ss. 44.1011-44.406, Florida Statutes,
169	as Part I of chapter 44, Florida Statutes, entitled
170	"Arbitration."
171	Section 3.  Section 44.1011, Florida Statutes, is amended
172	to read:
173	44.1011  Definitions.--As used in this part chapter:
174	(1)  "Arbitration" means a process whereby a neutral third
175	person or panel, called an arbitrator or arbitration panel,
176	considers the facts and arguments presented by the parties and
177	renders a decision which may be binding or nonbinding as
178	provided in this part chapter.
179	(2)  "Mediation" means a process whereby a neutral third
180	person called a mediator acts to encourage and facilitate the
181	resolution of a dispute between two or more parties. It is an
182	informal and nonadversarial process with the objective of
183	helping the disputing parties reach a mutually acceptable and
184	voluntary agreement. In mediation, decisionmaking authority
185	rests with the parties. The role of the mediator includes, but
186	is not limited to, assisting the parties in identifying issues,
187	fostering joint problem solving, and exploring settlement
188	alternatives. "Mediation" includes:
189	(a)  "Appellate court mediation," which means mediation
190	that occurs during the pendency of an appeal of a civil case.
191	(b)  "Circuit court mediation," which means mediation of
192	civil cases, other than family matters, in circuit court. If a
193	party is represented by counsel, the counsel of record must
194	appear unless stipulated to by the parties or otherwise ordered
195	by the court.
196	(c)  "County court mediation," which means mediation of
197	civil cases within the jurisdiction of county courts, including
198	small claims. Negotiations in county court mediation are
199	primarily conducted by the parties. Counsel for each party may
200	participate. However, presence of counsel is not required.
201	(d)  "Family mediation" which means mediation of family
202	matters, including married and unmarried persons, before and
203	after judgments involving dissolution of marriage; property
204	division; shared or sole parental responsibility; or child
205	support, custody, and visitation involving emotional or
206	financial considerations not usually present in other circuit
207	civil cases. Negotiations in family mediation are primarily
208	conducted by the parties. Counsel for each party may attend the
209	mediation conference and privately communicate with their
210	clients. However, presence of counsel is not required, and, in
211	the discretion of the mediator, and with the agreement of the
212	parties, mediation may proceed in the absence of counsel unless
213	otherwise ordered by the court.
214	(e)  "Dependency or in need of services mediation," which
215	means mediation of dependency, child in need of services, or
216	family in need of services matters. Negotiations in dependency
217	or in need of services mediation are primarily conducted by the
218	parties. Counsel for each party may attend the mediation
219	conference and privately communicate with their clients.
220	However, presence of counsel is not required and, in the
221	discretion of the mediator and with the agreement of the
222	parties, mediation may proceed in the absence of counsel unless
223	otherwise ordered by the court.
224	Section 4.  Paragraph (a) of subsection (2) of section
225	44.102, Florida Statutes, is amended to read:
226	44.102  Court-ordered mediation.--
227	(2)  A court, under rules adopted by the Supreme Court:
228	(a)  Must, upon request of one party, refer to mediation
229	any filed civil action for monetary damages, provided the
230	requesting party is willing and able to pay the costs of the
231	mediation or the costs can be equitably divided between the
232	parties, unless:
233	1.  The action is a landlord and tenant dispute that does
234	not include a claim for personal injury.
235	2.  The action is filed for the purpose of collecting a
236	debt.
237	3.  The action is a claim of medical malpractice.
238	4.  The action is governed by the Florida Small Claims
239	Rules.
240	5.  The court determines that the action is proper for
241	referral to nonbinding arbitration under this part chapter.
242	6.  The parties have agreed to binding arbitration.
243	7.  The parties have agreed to an expedited trial pursuant
244	to s. 45.075.
245	8.  The parties have agreed to voluntary trial resolution
246	pursuant to s. 44.104.
247	Section 5.  Section 44.106, Florida Statutes, is amended to
248	read:
249	44.106  Standards and procedures for mediators and
250	arbitrators; fees.--The Supreme Court shall establish minimum
251	standards and procedures for qualifications, certification,
252	professional conduct, discipline, and training for mediators and
253	arbitrators who are appointed pursuant to this part chapter. The
254	Supreme Court is authorized to set fees to be charged to
255	applicants for certification and renewal of certification. The
256	revenues generated from these fees shall be used to offset the
257	costs of administration of the certification process. The
258	Supreme Court may appoint or employ such personnel as are
259	necessary to assist the court in exercising its powers and
260	performing its duties under this part chapter.
261	Section 6.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.