COMMENT TO AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS

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1 Filing # E-Filed 08/24/ :41:27 PM IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT- APPOINTED MEDIATORS CASE NO. SC COMMENT TO AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS RECEIVED, 08/24/ :43:38 PM, Clerk, Supreme Court D. ROBERT HOYLE, Chairman of The Executive Council of the Alternative Dispute Resolution Section of the Florida Bar ( Executive Council ) files this Comment to the Proposed Amendments to Part III (Discipline) of the Florida Rules for Certified and Court Appointed Mediators ("Disciplinary Rules") ( Proposed Amendments ). The Executive Council recognizes the importance of delineating clear and concise guidelines for disciplinary proceedings for mediators who have allegedly violated the Standards of Professional Conduct. The Executive Council recognizes the importance of ensuring that new applicants seeking Florida Supreme Court mediator certification, applicants seeking renewal of their certification(s), applicants seeking certification in additional areas, and mediators seeking reinstatement of their certification(s) meet all of the standards imposed by Part I (Mediator Qualifications). The Executive Council recognizes the importance to the mediation profession and to the public of maintaining high ethical standards and adequate disciplinary procedures for certified mediators and court-appointed mediators and mediators selected by the parties to mediate disputes in courtordered mediations. SUMMARY OF OBJECTIONS TO PROPOSED AMENDMENTS The Proposed Amendments to Part III are not just procedural "re-writes." The Proposed Amendments make major substantive changes to the existing Disciplinary Rules. The Executive Council agrees that it is time to review Part III and suggest changes to the Disciplinary Rules, many of which have not been amended since However, the Executive Council cannot endorse the Proposed Amendments in the form presented to this Court. The Proposed Amendments do not meet the requisites of clarity, uniformity, adequate notice, Page 1 of 32

2 procedural due process 1 and fairness which are fundamental to neutral professional certification and disciplinary processes. The Proposed Amendments lack balance, favor the Florida Dispute Resolution Center (DRC) and its investigators and prosecutors, impose undue burdens and adverse presumptions on the mediator, and fail to afford equal rights to the mediator who is the subject of the disciplinary process. For example, when the DRC believes that an application for re-certification raises the question of whether the mediator has "good moral character" the applicant for re-certification does not retain his certification during the Proposed Rule investigatory and judicial process implemented by the DRC. The rule provides that the DRC shall refer the matter to the Qualifications Inquiry Committee ("QIC") and an investigation may be conducted. Based upon the outcome of the investigation and decision of the QIC, the matter may proceed to the complaint stage and a panel may be appointed for adjudication of the issues raised. There are no time limits on the investigation or decision making process. Many certified mediators make all or a portion of their living mediating court appointed cases, and certification is necessary/desirable for them to be selected to mediate certain cases. If certification is not renewed and held "in limbo" for an indefinite period of time it can result in undue economic hardship to the mediator whose certification is ultimately approved. The Executive Committee strongly opposes stripping a mediator of his/her certification during this undefined investigatory period and believes that the mediator should be able to retain his/her certification until such time as there is a final adjudication on the merits of the good moral character inquiry. Notably, the Proposed Amendments fail to provide for any safeguards for the mediator to ensure that they are aware of the actions taken during the course of disciplinary proceedings. For example, the amendments fail to provide: (1) for adequate notice to the mediator of actions taken during the course of disciplinary proceedings, (2) the mediator with information obtained by investigatory arms of the DRC, (3) the mediator with the means of conducting discovery, (4) the mediator with an opportunity at the commencement of the disciplinary process to provide information to assist the committees in evaluating whether "probable cause" exists, (5) the mediator with due process by affording him/her an opportunity to challenge investigators, prosecutors and legal advisers who are 1 See Commentary to Model Rule 18 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (2002): "The holder of a license to practice law is subject to discipline for breaches of the standards of professional conduct; the license must not be arbitrarily taken away and the holder is entitled to procedural due process in any proceeding relating to such conduct." Page 2 of 32

3 hand-picked by the DRC, and (6) for an appeal process for the discretionary decisions by the DRC which fundamentally impact the disciplinary process. There are also "admissions" arising from the failure to timely respond which cannot later be remediated, and which can form the basis for disciplinary actions. SUGGESTIONS FOR COLLABORATION The ADR Rules and Policy Committee and the ADR Section of the Florida Bar are committed to ensuring that mediators who assist the courts and the public provide ethical professional services. We all agree that mediators are guardians of the mediation process and are tasked with providing a balanced, neutral and impartial process, emphasizing party self-determination, and avoiding conflicts of interest and mediator coercion. The ADR Section of the Florida Bar brings a different perspective because it represents Florida licensed attorney/mediators, some of whom are engaged in the full or part-time practice of law. Our members represent both mediators and consumers of mediation services. The Executive Council is committed to working collaboratively with the ADR Rules and Policy Committee and has welcomed a liaison with the ADR Rules and Policy Committee this year. Working collaboratively with the ADR Rules and Policy Committee, the Executive Council believes that more consistent and uniform changes can be made to Part III, and that a more balanced and fair disciplinary process can be crafted ensuring that the fundamentals of due process are afforded to mediators who are the subject of investigations and the disciplinary process. While we commend the efforts of the ADR Rules and Policy Committee, we cannot support the Proposed Amendments that have been presented to the Court for ratification and approval for the more detailed reasons set forth below. SPECIFIC OBJECTIONS/CONCERNS The Executive Council shares many of the concerns outlined in the Comment which was served on July 31, 2015 and filed with this Court on August 5, 2015 by the Eleventh Judicial Circuit, on behalf of the Mediation/Arbitration Division. The Executive Council has followed the same format for its comments. The Proposed Rule is set forth in the left-hand column and specific objections and or concerns are set forth in abbreviated fashion in the right-hand column. This methodology does create some repetition and whenever possible, the Executive Council has tried to reduce that repetition to a minimum. Page 3 of 32

4 PREFACE TO COMMENTS In order to make our comments more comprehensible, we note that the Proposed Rules now create four disciplinary tracks: Track 1- GOOD MORAL CHARACTER INQUIRIES RELATED TO THE CERTIFICATION PROCESS: Good moral character concerns regarding new applications for certification /renewals/certification in new areas- referred to QIC from DRC. Proposed Rule (a). Track 2 -GOOD MORAL CHARACTER INQUIRIES UNRELATED TO CERTIFICATION PROCESS: Good moral character inquiries arising at a time other than during the certification process or reinstatement process are considered ethical rule violations-referred to RVCC from DRC. Proposed Rule (a). Track 3 - VIOLATIONS OF THE ETHICAL RULES OTHER THAN GOOD MORAL CHARACTER INQUIRIES-referred to RVCC from DRC. Proposed Rule Track 4-REINSTATEMENT OF CERTIFICATION: It is not clear whether good moral character inquiries involving reinstatement after suspension (Proposed Rule (b)) as well as reinstatement after decertification (Proposed Rule (f)) are referred to QIC. Where reinstatement after suspension is inconsistent with rule (good moral character) reinstatement can be denied. There is no provision for how these good moral character issues are heard and by whom. What is specifically referred to the QIC pursuant to Rule (f)(3)(d) is a petition for reinstatement after decertification to determine if the petitioner is "unfit to mediate." Under the current rule it appears that a panel hears these matters and not a complaint committee Page 4 of 32

5 Proposed Rule (a),(b)(c), (c), (i) (c) (a), (d), (i)(7)(8) Comment/Recommendation Most of the Proposed Rules do not have time periods for action to be taken by the RVCC, the QIC, the DRC, panels, investigators, and the Prosecutor. Instead, the Proposed Rules use "speedy" action, "upon completing an action, "upon receipt," "after" or "if" certain events occur, "as soon as practical," or promptly," or within a reasonable period of time." There needs to be specific time periods for the disciplinary processes and procedures to take place (a) and (c) This Proposed Rule does not require that everything provided by the DRC or investigators to the QIC or the RVCC be given to the Mediator at every stage of the process. All information regarding a Mediator's prior disciplinary history which is given to the QIC, the RVCC or a panel should be provided simultaneously to the Mediator and should not include investigations or inquiries or disciplinary actions which did not result in suspension, probation, disbarment or public reprimands by a professional licensing authority, and should not include any admonishments or sanctions by a court. All "credible evidence" of lack of good moral character which the DRC believes merits a good moral character inquiry must be provided to the Mediator. Page 5 of 32

6 (b) The Proposed Rule states that the QIC shall convene as necessary by conference call or other electronic means to consider all cases currently pending before it. However, Rule (b) references proceedings and appears to include inperson hearings. Mediators should be provided with notice of and given the opportunity to attend and to be heard and to have court reporters present to record all such convenings or proceedings of the QIC at any stage in the disciplinary process. Time limits need to be imposed for review process (c) There is no provision for how the Mediator will be "requested" by the DRC to provide "additional information" the DRC deems "necessary" to the review of a "new" or "renewal" application. A provision providing for a process for requesting additional information must be provided. The rule should include an application for certification in an additional area of certification (d) The Proposed Rule does not provide the Mediator an opportunity at the initial stage of QIC review to respond to and supplement documentation. A Mediator should be able to supplement and provide additional information to the Page 6 of 32

7 QIC for their initial review once the Mediator is provided a copy of all information provided by the DRC to the QIC. A Mediator should not be denied the opportunity to respond to the "supporting information" supplied by the DRC to the QIC in their initial review process (d)(1)(C) (d),(e) (i)(11) Notice: In General there are various provisions in the Proposed Rules which contain different Notice requirements or which do not describe how requests are sent to Mediators or Applicants by the DRC. All notices, requests and information provided/forwarded to Applicants or Mediators subject to disciplinary proceedings should be given or sent in writing to all addresses and all physical and post office box addresses provided by a Mediator to the DRC. The DRC website will not accept a P.O. Box address for a mediator but the physical address may not be sufficient for assuring notice to a mediator (such as when multiple persons share the same address, sort through and sign for mail). Mailing shall be by certified mail (f), (c) (d)(1)(c) (d)(2)(c) There is no uniformity in the Rules about how Mediators/Applicants can respond or reply. Mediators/applicants should be able to respond/reply/provide information to the DRC Director or staff person designated by the DRC Director by , fax, or by Page 7 of 32

8 any other service (including by U.S. postal or other delivery services) and service shall be made on the date sent by U.S. mail or other delivery service, or the date faxed or ed (d)(1)(c) (f) The DRC is given the sole authority to extend the 20 day response time to a QIC complaint. Motions for extension of time should toll the time until granted or denied, should be decided by the Chair of the QIC, and should be liberally granted. Upon good cause shown, the QIC chair should grant motions that are filed for an extension of time to respond after the 20-day response period. Motions for leave to amend responses should be liberally granted by the QIC Chair (k) Applicants should receive a copy of all inquiries sent to the DRC regarding their good moral character, and should be entitled to provide additional information at all times to the QIC for their consideration. The burden of proof of clear and convincing evidence should apply to all stages of the proceedings under this Rule (l) The Proposed Rule unnecessarily extends jurisdiction of the QIC. Withdrawal of a pending application, should be treated like a voluntary dismissal, and result in loss of jurisdiction Page 8 of 32

9 by the QIC (a) and (f) The Proposed Rules delay notification to the Mediator DRC should notify Mediator as soon as complaint is filed with the DRC. All complaints should be sworn to and notarized based upon personal knowledge (d)(1) Good moral character inquiries handled by the RVCC do not follow the same procedures for good moral character inquiries handled by the QIC. For example, Rule (c) provides the opportunity for a Mediator to respond before anything is sent to the QIC, and does not contain any provision for an initial determination by the QIC as to whether a complaint is facially sufficient. Procedures for all good moral character inquiries provided for in the disciplinary rules should be consistent, should provide for Mediators to be notified at the outset of any inquiries, should provide for all information obtained or submitted to be provided to the Mediator, and the Mediator should be given an opportunity to rebut or explain or provide additional information during all steps of the process. It is unclear why good moral character inquiries arising during the term of certification of a mediator, independent of applications for certification, should be handled by the RVCC as opposed to the QIC, and why different procedures or Page 9 of 32

10 processes should apply. This Proposed Rule allows a complainant to re-file a complaint 2 times after the first is dismissed without prejudice by the RVCC as facially insufficient. Re-filing should be limited to 1 time and only upon good cause shown by the complainant as to why it should be allowed to re-file to provide some semblance of finality. Any Complaints which the RVCC finds to be facially insufficient should not be part of a mediator's disciplinary history and any complaint or documentation related thereto should be provided to the mediator at the time it is filed. The standard of "facial sufficiency" is not the same standard as "clear and convincing evidence" which should be the burden of proof for all disciplinary proceedings, at all stages of the proceedings , , , , , It is unclear if the Rules of Civil Procedure apply and what motions mediators or applicants can file during disciplinary processes generally available in civil trials or quasi-administrative proceedings (f) The Proposed Rule Unreasonably Punishes the Mediator for Failure to Provide a Timely Response. Failure of a mediator to timely respond to a complaint should not be deemed an Page 10 of 32

11 admission. All violations of ethical rules should be proven by the prosecutor by clear and convincing evidence, unless the Mediator agrees and stipulates to a violation of the ethical rules in a disciplinary proceeding (g) The Proposed Rule unnecessarily extends jurisdiction of the MQDRB. Resignation of certifications by a mediator should result in loss of jurisdiction by the MQDRB (m) The Proposed Rule does not provide for a dismissal with prejudice. If the RVCC determines that there is no probable cause, or decides not to proceed with the case by filing an Order of Non- Referral, the complaint should be dismissed with prejudice. The Mediator should be able to recover his reasonable costs for defending against a complaint when no probable cause was found by the RVCC (o) The Proposed Rule fails to provide that a stipulated dismissal shall be with prejudice. Stipulations for dismissal of a complaint should be with prejudice (f) The Proposed Rule fails to provide a method of notice of panel hearing. Notice of panel hearings to all parties including complainant should be consistent. Page 11 of 32

12 (h) The Proposed Rule fails to provide that a stipulated dismissal shall be with prejudice. Stipulations for dismissal of a complaint should be with prejudice (i)(4) The Florida Rules of Evidence applicable to civil trials apply to panel proceedings, but are to be liberally construed. This is a subjective standard and does not appear to apply to any other disciplinary proceedings other than panel proceedings. The Proposed Rules should be uniform with regard to evidence that may be considered at all steps of all disciplinary proceedings. No evidence should be considered during any step of any proceeding that is not provided to the Mediator. There is nothing in the Proposed Rules that indicate if the Florida Rules of Civil Procedure apply to all disciplinary proceedings (i)(5) The Rule provides that all testimony presented at all disciplinary proceedings including but not limited to panel proceedings should be "in-person" and not through telephonic or other communication equipment unless "good cause" is shown to the Chair. All parties should have the right to object to a request for telephonic testimony or testimony through other communication equipment before the Chair rules on any Page 12 of 32

13 such request (i)(6) The Proposed Rule fails to provide the Mediator with the "right to defend" at all steps of the disciplinary proceeding. The rights set forth in this Proposed Rule regarding a Mediator or Applicant's "right to defend" at a panel hearing should apply to all steps of all disciplinary proceedings, and not just panel hearings (i)(7) and (8) The Proposed Rule fails to provide the Mediator with the opportunity for discovery at all steps of the disciplinary proceeding Rules for Discovery should apply to all steps of all disciplinary proceedings, and not just to panel hearings. All discovery that is relevant or reasonably calculated to lead to admissible evidence should be produced to the other party within a given number of days of request therefore. Additionally, without need for a formal request for disclosure, all investigatory information produced by any investigator retained by the DRC at any time, or any other information provided by the DRC to the RVCC, QIC, or any member of the MQDRB at any time should be contemporaneously provided to the Mediator. The rules make reference to depositions and transcripts with no procedure outlined to schedule a deposition. Exhibit lists and copies of all exhibits, witness lists including the names and Page 13 of 32

14 addresses and addresses and telephone numbers of all witnesses who are intended to testify and all reports or other information upon which they intend to base their testimony, and a summary of their anticipated testimony, copies of depositions which are intended to be introduced into evidence in lieu of live testimony, should be provided to the other party within a specified number of days prior to any proceeding in which they are intended to be used, in every step of a disciplinary process (i)(9) The Proposed Rule does not provide for dismissal of a complaint with prejudice upon non-appearance of a complainant. If a complainant fails to appear at the panel hearing, of which the complainant has received notice, without good cause shown, panel shall dismiss the case without prejudice. The dismissal should be with prejudice (i)(10) The Proposed Rule (1) should not provide that allegations are admitted upon nonattendance of a Mediator and (2) should provide that the entire panel consider a petition for rehearing. If a Mediator fails to appear, there should be no admissions based upon Mediator's failure to timely file an answer to a complaint. No allegations should ever be deemed admitted but should be proved by clear and convincing evidence. All petitions for rehearing, or any other non-discovery motions should be Page 14 of 32

15 determined by the entire panel, or committee, and not the Chair in all disciplinary processes. All panel rehearings granted should be conducted with the same procedural protections and rights as afforded for the initial hearing (c) The Proposed Rule sets forth no time frames for when panel proceedings will be commenced or terminated. The Proposed Rules do not define whether the Mediator as well as the panel shall be entitled to the entry of orders to compel attendance of witnesses at the panel hearing, have subpoenas issued to compel depositions of witnesses, order production of records or other documentary evidence, or have anyone held in contempt for failure to comply with subpoenas issued on behalf of the Mediator (a) The venue for RVCC proceedings is not delineated in this Rule although it addresses attendance of a person at proceedings and testimony. Rule (d) states that the RVCC will convene by conference call to determine whether allegations in a complaint are facially sufficient. The Mediator should be provided copies of all information provided to the RVCC during any step of the process, and the opportunity to provide additional information for consideration at every step of the process. The Mediator and his/her counsel should Page 15 of 32

16 be permitted to attend every proceeding or meeting of the RVCC, should be provided the opportunity to be heard, and to have a court reporter present if requested by the Mediator. The provisions which relate to the RVCC's power to compel discovery should be equally available to the Mediator (b) The venue for QIC proceedings is not delineated in this Rule although it addresses attendance of any person at a proceeding, and testimony. The Mediator/Applicant should be provided copies of all information provided to the QIC during any step of the process, and the opportunity to provide additional information for consideration at every step of the process. The Mediator/ Applicant and his counsel should be permitted to attend every proceeding or meeting of the QIC, should be provided the opportunity to be heard, and to have a court reporter present if requested by the Mediator/Applicant. The provisions which relate to the QIC's power to compel discovery should be equally available to the Mediator (d)(5) The Proposed Rule provides the Chair of the panel can implement procedures during the hearing. The procedures should be clearly defined for the Mediator/Applicant in advance of any hearing in writing. In a quasi-judicial proceeding such as this the Rules of Civil Page 16 of 32

17 Procedure should apply (d)(6) The Proposed Rules lack fundamental fairness, clarity and consistency regarding "evidence" considered by the DRC, RVCC, QIC and panel. This Proposed Rule provides the Chair of the panel can determine the admissibility of evidence at a hearing. This determination should be made by the entire panel and not just the Chair. Rule (i)(4) provides that rules of evidence applicable to trials of civil actions shall apply at panel hearings but are to be liberally construed. The Mediator/Applicant needs to know in advance what standards apply to determine the "admissibility" of evidence at the hearing and if hearsay will be admitted. There is no Proposed Rule which provides what "evidence" can be considered by the DRC, RVCC or QIC, but it appears that they can consider hearsay evidence gathered by investigators. The Comment to Rule makes it clear that disciplinary actions from whatever source will be provided to the QIC for their consideration, as well as other "incidents." Evidence admitted by a panel should be limited solely to that which relates to the initial rule violation or initial subject of the inquiry. Unrelated alleged rule violations or moral character issues not Page 17 of 32

18 part of the initial inquiry or complaint should not be admissible. Nor should any inquiries or complaints against Mediators/Applicants which did not result in disciplinary sanctions be considered or any evidence considered in connection therewith (d)(7) The Proposed Rule allows the panel Chair to decide motions prior to or during the hearing. The Mediator/Applicant needs to know what motion practice is permitted prior to or during the hearing, what the time frames are regarding motion practice, and all non-discovery related motions should be heard by the entire panel (e) This Proposed Rule creates a Contempt/Disqualification Judge who is one judge from each division of the MQDRB who serves for 1 year. This Rule provides that motions for contempt brought by RVCC and the QIC (but not the panel) shall be heard by the Contempt/Disqualification Judge as well as motions to disqualify any member of an RVCC, QIC or panel. Since there is nothing in the Proposed Rules that define motion practice by a Mediator/Applicant, or allow a Mediator/Applicant to file a Motion for Contempt against a person or witness who fails to respond to subpoenas issued on behalf of a Mediator/Applicant for appearance or production of discovery, Page 18 of 32

19 this is a one sided rule. The Comment to this rule indicates that this changes the prior Rule which was that if the committee or panel chair found a motion to disqualify legally sufficient then disqualification was automatic. The grounds for granting disqualification by the Contempt/Disqualification Judge are not spelled out in the Proposed Rule. There is no provision for motions to disqualify Investigators, Prosecutors, Panel Advisers or other legal counsel retained to assist the RVCC, QIC, panel or DRC in the disciplinary process This Proposed Rule is entitled "Contempt Process" and it specifies that certain specified contemptuous actions or inactions related to activities of the RVCC, QIC, or panel, may be heard, upon motion of the RVCC, QIC or panel, by a circuit court judge of the county in which the alleged contemptuous act was committed. This Proposed Rule overlaps with Rule and Rule does not provide the Mediator/Applicant with equal opportunity to file such motions. Rule "Subpoenas" provides that subpoenas for production of documents or other evidence and for appearance of any person before an RVCC or QIC or any member thereof or a panel may be issued. Rule (d) provides that failure to obey "without good cause shown" may result in a citation for contempt in accordance with Rule Again, this Page 19 of 32

20 is one-sided This Proposed Rule imposes new duties to report to the DRC certain events that the DRC apparently thinks are relevant to good moral character inquiries. This Proposed Rule does not just "clarify" prior reporting requirements in current Rules (b)(1) and (2) which related to professional licensure. This Proposed Rule is overbroad and the terms admonished" and "reprimanded" are undefined. If a Mediator is verbally "admonished" by a court for tardiness, it is unclear if this is reportable. If a Mediator is ordered to pay a de minimis amount to a charity or bar association because a Mediator does not follow a court rule, such as including specific language in a notice for a motion calendar hearing, or ordered to pay the other party a de minimis amount because the Mediator failed to timely advise the other side that a hearing was cancelled,these de minimis monetary sanctions should not be reportable to the DRC. It is also not clear what entity is considered a "professional group." Reportable events should only include those related to limitations or restrictions on a mediator's other professional licensure (suspension, probation, disbarment or public reprimands by a professional licensing authority.) (g) The Proposed definition of "Investigator" Page 20 of 32

21 indicates that the "Investigator" is retained by the DRC at the direction of an RVCC or a QIC. There are no credentials set forth for being retained as an "Investigator" and no prohibition against an "Investigator" also being appointed as a "Prosecutor" or any requirement for an "Investigator" to be neutral. Moreover, it appears that the "Investigator's findings," and documents or other materials obtained or utilized by the "Investigator" are provided ex parte to an RVCC or a QIC. Some of these investigatory materials may not even be discoverable by the Mediator prior to a formal panel adjudicatory hearing pursuant to Rule (i)(1)(7). The Proposed Rules provide that fees and costs for these investigation services may be assessed against a Mediator as a disciplinary sanction pursuant to Rule (b)(9)(10) with no limitation as to amount and without requiring investigatory information to be provided to the Mediator. There is no Proposed Rule that permits a Mediator to recoup any of their costs if the DRC is unsuccessful in the prosecution of the Mediator. Proposed Rule (n) also provides that the DRC can additionally retain at the request of the RVCC after probable cause is found "a member in good standing of The Florida Bar to conduct such additional investigation as necessary and draft the formal charges." Again, investigatory materials are not provided to the Mediator Page 21 of 32

22 and may not be discoverable; the "additional investigator" is not required to be neutral, and may also serve as the "Prosecutor." There is no process for disqualifying the "additional investigator." As a matter of fundamental due process, any and all information regarding any disciplinary matters at all stages of disciplinary proceedings considered and/or provided to the DRC, RVCC, QIC, or panel should be provided simultaneously to the Mediator. Further, the Contempt Disqualification Judge should be empowered to hear motions by Mediators/Applicants regarding disqualification of "Investigators," "Panel Advisers," Prosecutors" other additional investigators, and legal counsel retained by the DRC or involved in the disciplinary processes (j) The Proposed Rule provides the DRC may retain the services of a "Panel Adviser" who is a member of the Florida Bar to assist a hearing panel to perform its functions, including attending the panel disciplinary hearing, and who may sit in on panel deliberations to answer procedural questions. There is no process for a Mediator/Applicant to disqualify the "Panel Adviser." There is no experience required for being retained as a "Panel Adviser." There is no disclosure requirement regarding conflicts. Page 22 of 32

23 (k) The Proposed Rule states that the "Prosecutor" is retained by the DRC. There is no experience required. There is no disclosure requirement regarding conflicts. There is no process for a Mediator/Applicant to disqualify the "Prosecutor." (l) The Proposed Rule defines the Qualifications Inquiry Committee or QIC. To be consistent it should state that the QIC shall conduct investigations and disposition of any good moral character inquiry for new applications, renewals, and applications for additional certifications." See Rule (a) definition of applicant (m) The Proposed Rule defines a Rule Violation Complaint as formal submission of alleged violation(s) of the Florida Rules for Certified and Court-Appointed Mediators. The comment states that this is "to distinguish it from a good moral character inquiry or complaint." However, this is misleading. A good moral character inquiry involving a certified mediator at any time other than during the application process for new, renewal and additional certifications is considered a Rule Violation complaint. This should be clarified. All inquiries regarding the good moral Page 23 of 32

24 character of certified mediators which arise at any time (except regarding reinstatement petitions which should be considered by a 5-member panel) should be referred to a local RVCC consisting of 4 members impaneled to hear the specific issues raised by the DRC and those issues only, and throughout the proceedings all investigatory information or information provided to the DRC, RVCC or panel should simultaneously be provided to the Mediator, who should be given the opportunity to rebut the same or to provide additional information for clarification or explanation, prior to any decision being made by the DRC, RVCC or panel (b) This Proposed Rule creates 4 divisions of the MQDRB. It is not clear if in each Division the judges shall be 1 circuit court judge, 1 county court judge and 1 appellate court judge, or any combination thereof. The Proposed Rule does not mandate the appointment of non-attorney certified circuit civil, county or appellate mediators. Compare the requirement in the Proposed Rule that 2 of 3 family mediators have to be non-lawyers and 1 dependency mediator must be a non-lawyer. The Proposed Rule provides that in each division there shall be 3 attorney members of the MQDRB. The 3 attorneys must be licensed to practice law in Florida for at least 3 years, cannot be certified mediators or currently serving as judges, must have a substantial trial or appellate practice, and Page 24 of 32

25 at least 1 should have a substantial family law practice. The attorney members must have knowledge of and experience with mediation practice, statutes, and rules. The minimum qualifications should be licensure to practice law in Florida for at least 5 years, and attendance at a minimum of 20 mediations. Retired attorneys who had substantial trial or appellate practices, but who are not currently practicing law should be qualified for appointment. Additionally, knowledge of MEAC opinions should be required (d) and (e) The Proposed Rules restrict the appointment of a Chair/Vice Chair to an attorney or judge. Mediators who are not attorneys or judges should be permitted to serve as Chair or Vice Chair of an RVCC or QIC (a) and (b) The Proposed Rule incorrectly contains a lower standard of burden of proof for a Good Moral Character issue. The burden of proof in all stages of all disciplinary processes should be clear and convincing evidence. The mere filing of a complaint has a substantial impact on the mediator's professional reputation and livelihood The Proposed Rule fails to provide a Mediator with a right to seek sanctions. The Mediator should be afforded the reciprocal right to seek sanctions against a Page 25 of 32

26 complainant if the panel determines that a complaint was frivolous. There should be a procedure that provides a mediator with an opportunity to have an action determined to be without merit and subject to sanctions (b)(9) The taxable costs listed in this section go well beyond what are normally taxable costs (e.g., costs for travel expenses and for investigatory expenses). The taxable costs should be subject to a cap. The Applicant/Mediator should be able to recover their costs when the Prosecutor is unsuccessful in the prosecution of a particular matter. The right to recover costs should be reciprocal (c) The Proposed Rule fails to provide a time limit for a motion for contempt, fails to specify notice provisions, and fails to provide proper procedures for consideration of contempt issues. There should be a time limit for filing a motion for contempt by the DRC with the Contempt/Disqualification Judge against a Mediator/Applicant for failure to comply with sanctions. For all contempt hearings provided for in Rule , , and (c) the form in which notice is served to the Mediator/Applicant, the time and manner of filing the response should be specified. The burden of proof should be clear and convincing evidence and the rules of Page 26 of 32

27 evidence should apply at all contempt proceedings. Failure to file a response should not be deemed an admission. There should be provisions for motion practice (such as asking for additional time to file a response), production of discovery, notice of exhibits and witness lists, and time limits for setting the hearing similar to those set forth for panel hearings. The Rules of Civil Procedure should apply to all contempt proceedings (c)(4) The Proposed Rule fails to provide the Mediator/Applicant with notice of any additional issues to be heard at a hearing. Due process requires that "any additional alleged failures to comply" with sanctions, just like any new Good Moral Character issues not the subject of the initial inquiry, or any alleged rule violations not the subject of an original complaint, be the subject of a new disciplinary process, and cannot be considered as part of a process that has already commenced (c)(6) The Proposed Rule fails to establish a clear standard for a failure to comply with a sanction. If the standard is "willful failure to substantially comply" with any sanction, then the DRC should not initiate any contempt proceedings unless there is reasonable belief that there has been "willful" failure to substantially comply with sanctions. "Willful failure to substantially comply" is not defined, but "willful failure to Page 27 of 32

28 substantially comply" is not used as the standard in contempt proceedings in Rules and where applicable (e.g., "willful failure to substantially comply with a subpoena requiring production of documents"). The requirement for no less than 2 years of decertification if there is a "willful failure to substantially comply" with sanctions is new and the Contempt/Disqualification Judge should not be required to mandatorily impose this minimum 2 year decertification. Rule (d) provides that a panel chair can hold anyone "in contempt prior to and during the panel hearing" for any reason. There is no provision for appealing any such action by the Chair. However, as stated above the powers delegated to the Chair of the panel in Rule (d) should be limited to issuing subpoenas to compel depositions or attendance of witnesses, to order production of evidence or discovery. All substantive non-discovery motions, and the admissibility of evidence at a hearing should be determined by the panel and not just the chair. All matters of contempt should be heard in accordance with the procedures that should be uniform for contempt proceedings provided for in Rules 1.740(e), 1.750,and (c)(6) This Proposed Rule references a "finding pursuant to the procedure established in the sanction agreement or decision of the panel" in addition to a finding by the Page 28 of 32

29 Contempt/Disqualification judge. This language is confusing and it is not clear who is making the "finding." (c)(4) The DRC has the authority to automatically deny any application for certification if the applicant has had any professional license revoked or an attorney is disbarred, and the applicant cannot reapply for 2 years. "Revocation" of a professional license is a broad term that may not be based upon issues related to Good Moral Character, and should not be an automatic basis for disqualification (b) The Proposed Rule provides for good moral character inquiries regarding reinstatement after suspension. Any good moral character inquiry regarding either reinstatement after suspension or reinstatement after decertification should follow the same processes and procedures for QIC review set forth for good moral character inquiries related to new applicants (f)(3)(d) The Proposed Rule provides for good moral character inquiries regarding reinstatement after decertification. Any good moral character inquiry regarding either reinstatement after suspension and reinstatement after decertification should follow the same processes and procedures for QIC review set forth for good moral character Page 29 of 32

30 inquiries related to new applicants. The criteria "unfit to mediate" is not defined. It appears that the Proposed Rule uses the term "unfit to mediate" to include lack of Good Moral Character when a decertified applicant is applying for reinstatement. A clear standard should be created for guidance in reinstatement (a) A non-complaining party to a mediation is entitled to confidentiality regarding their mediation communications, and this confidentiality should not be waived as to them based upon a finding of probable cause. All non-complaining parties to a mediation should receive notification of any complaints regarding mediations in which they were parties (a) and (c) Statute of Limitation on (1) Initiation of Rule Violation Complaints and (2) Good Moral Character Issues related to Applications Should be Consistent. Proposed Rule (a) Statute of limitations should be 2 years from date knew or reasonably should have known of a rule violation (without extension to 4 years). Similarly Proposed Rule (c) should have a 2 year statute of limitations from date of submission of application, with regard to Good Moral Character Issues related to application process. Page 30 of 32

31 A longer period of time will limit the Mediator/Applicant's ability to defend against these inquiries/complaints as availability of witnesses and preservation of evidence may be adversely affected with passage of time. There should be some degree of closure within a reasonable period of time Right of Review by Florida Supreme Court : The right of review should extend to actions taken by a Contempt/Disqualification Judge and Chair of panel holding someone in contempt, denials of reinstatement, automatic decertifications, and other rulings of the Contempt/Disqualification Judge References to MQB should be changed to MQDRB. Respectfully submitted this 24 th day of August, _/s/ D. Robert Hoyle D. ROBERT HOYLE Chair of the ADR Section D. Robert Hoyle, P.A Third Avenue W., Suite 260 Bradenton, FL Telephone: (941) Florida Bar No.: Page 31 of 32

32 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Comment To Amendments To Florida Rules For Certified and Court-Appointed Mediators, was served on the Committee Chair, the Honorable Rodney Smith, Eleventh Judicial Circuit of Florida, Richard Gerstein Building, Room 712, 351 NW 12 th Street, Miami, Florida Linda Kelly Kearson, General Counsel, Eleventh Judicial Circuit, Lawson E. Thomas Courthouse, 175 NW 1 st Street, Suite 3033, Miami, FL and on Staff to the Committee, Susan C. Marvin, Dispute Resolution Center, Florida Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399, this 24 th day of August, _/s/ D. Robert Hoyle D. ROBERT HOYLE Chair of the ADR Section _ CERTIFICATE OF COMPLIANCE I hereby certify that this Comment was prepared in compliance with the font requirements of Fla. R. App. P (a)(2). _/s/ D. Robert Hoyle D. ROBERT HOYLE Chair of the ADR Section Page 32 of 32

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