In re Amendments to the Florida Rules for Certified & Court-Appointed Mediators (762 So. 2d 441, 2000)

PER CURIAM.

The Florida Supreme Court Standing Committee on Mediation and Arbitration Rules (the Committee) petitions this Court to adopt proposed amendments to the Florida Rules for Certified and Court-Appointed Mediators (Mediation Rules). We have jurisdiction. Art. V, § 2(a), Fla. Const. The proposed changes were published for comment and comments from Gregory Firestone, Ph. D., were received. The Committee was asked to address Dr. Firestone’s comments and after the Committee filed its response, the Court considered the petition without oral argument.

The Committee, which was established in 1989, is charged with, among other things, submitting recommendations to this Court concerning procedural and ethical rules for court-ordered mediation and arbitration in Florida. In this petition, the Committee proposes changes to three areas of the Mediation Rules, specifically: (1) the Mediator Standards of Professional Conduct; (2) the “Good Moral Character” standard for mediators; and (3) the rules governing the Mediator Qualifications Advisory Panel. After considering the proposals and comments, we adopt the changes as proposed, with one exception which we explain below. The changes are summarized according to the general areas listed above and are discussed in more detail where necessary to address Dr. Firestone’s comments. Rules that have been merely renumbered are not addressed.

MEDIATOR STANDARDS OF PROFESSIONAL CONDUCT

The Committee’s proposed amendments to the ethical rules are the result of a two-year program of public hearings, public drafting sessions, statewide advance publication, and two separate mailings of initial drafts. Input was received from the Mediator Qualifications Board, the Supreme Court Committee on Mediation and Arbitration Training, the Mediator Qualifications Advisory Panel, the Committee from the Florida Association of Professional Family Mediators, the Florida Academy of Professional Mediators, the American College of Civil Trial Mediators, and the Trial Lawyers Section of the Florida Bar. The proposed changes to the ethical rules amount to a complete rewrite of the existing rules. In addition to revising the text of individual ethical rules, the Committee has reorganized the grouping and order of the rules, moved ethical concepts between rules, renumbered the rules, and created several new rules.

The ethical standards for mediators, which are grouped according to specific areas of a mediator’s ethical responsibilities, are outlined below.

General Provisions, Rules 10.200-10.230

Rules 10.200-10.230 (General Provisions) enunciate the scope and purpose of the rules, describe the role of mediation and the mediator, and set forth underlying concepts of the process. They are taken, with only minor changes, from current rule 10.020 (Preamble). Rule 10.200 (Scope and Purpose) provides an introduction and overview to the amended standards of conduct. It replaces existing rule 10.020(a).

Proposed rule 10.210 (Mediation Defined) defines “Mediation” as

a process whereby an impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.

Gregory Firestone, Ph. D. takes issue with the Committee’s use of the term “impartial third person,” rather than the statutory term “neutral third person.” See § 44.1011(2), Fla. Stat. (1999). He maintains that the Committee has substituted a requirement that mediators “only be impartial” for the statutory requirement that mediators be “neutral.” Dr. Firestone asks that we adopt a definition of mediation that mirrors the statutory definition, thereby avoiding the confusion caused by what he believes are conflicting definitions.

The current definition of mediation which is found in rule 10.020(b) (Preamble), basically tracks the statutory definition. As pointed out by Dr. Firestone, the proposed rule varies from the statutory definition by replacing the word “neutral” with the word impartial. According to the Committee, it was not its intent to substitute its definition of mediation for that of the Legislature. The Committee points out that the concept of impartiality, which is used throughout the new rules, is defined by new rule 10.330(a) as “freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.” By using the term “impartial” in the definition of mediation, the Committee sought to curtail a mediator’s tendency to interject his or her beliefs about how the subject of the mediation should be resolved, thereby protecting the parties’ right of self-determination-the guiding principle of mediation. In fact, according to the Committee, the rules were intended to promote exactly what Dr. Firestone urges they should — a “neutral role with regard to the outcome of a dispute.”

We basically agree with the Committee that the term “impartial,” as used in the rules, encompasses the concept of “neutrality” as used in the statute. However, in order to avoid any confusion that might be caused by the use of the differing terminology, we modify the amendment to rule 10.210 to refer to a “neutral and impartial third person.”

Rule 10.220 (Mediator’s Role) generally describes the function of the mediator and emphasizes that all decision making authority rests with the parties. It is basically a restatement of current rule 10.020(c). Rule 10.230 (Mediation Concepts) lists the general characteristics of the mediation process. It is basically a restatement of current rule 10.020(d), except that it omits “privacy” from the list of concepts that are emphasized in the process.

Responsibility to the Parties, Rules 10.300-10.380

Rules 10.300-10.380 include a collection of specific ethical concerns involving a mediator’s responsibility to the parties. The concepts formerly found in rule 10.060 (Self-Determination), rule 10.070 (Impartiality/Conflict of Interest), rule 10.080 (Confidentiality), rule 10.090 (Professional Advice), and rule 10.100 (Fees and Expenses) are incorporated in this series of rules. Also included in these rules are ethical concerns dealing with the mediator’s demeanor and courtesy, contractual relationships, and responsibility to nonparticipating persons.

Rule 10.300 (Mediator’s Responsibility to the Parties) describes the mediator’s responsibility to the parties. Rule 10.310 (Self-Determination) is taken from current rule 10.060 (Self-Determination) and rule 10.090(c) (When Party Absent) with only minor changes. Proposed subdivision (b) of rule 10.310 expands the existing prohibition against party coercion to include participation in the mediation process itself, and any decision made during the process. Subdivision (d) is a modification of existing rule 10.090(c). That rule required termination if one of the parties is unable to participate for psychological or physical reasons. The new provision requires a mediator to cancel or postpone a mediation if a party is unable to freely exercise self-determination, irrespective of reason.

Dr. Firestone maintains that the committee note to rule 10.310, which recognizes that a mediator may be asked to serve as a decision-maker, increases the lack of clarity between mediation and nonbinding arbitration. He fears that the committee note will encourage mediators to serve as arbitrators without offering clear guidelines for this “mediator/arbitrator” role. Dr. Firestone asks that before we “adopt standards allowing a mediator to serve as an arbitrator,” we appoint a committee to fully study the issue and make recommendations to the Court.

First, in addressing Dr. Firestone’s concerns, we must point out that committee notes are not adopted by this Court as part of the rules; rather, they are offered for explanation and guidance only. The committee note at issue here addresses the rare situation where a mediator is asked to become the decision-maker, which may occur when the parties are unable to reach an agreement. According to the Committee, the committee note was intended to provide guidance in this situation, not to sanction or encourage it. Moreover, rule 10.310(a) specifically provides that “a mediator shall not make substantive decisions for any party.” Similarly, rule 10.370(c) provides that “a mediator shall not offer a personal or professional opinion intended to ... decide the dispute, or direct a resolution of any issue.” Consistent with these provisions, the committee note simply attempts to make clear that once the mediator agrees to serve as decision-maker, he or she is no longer acting as a mediator and must inform the parties of the change in the relationship and obtain their consent before proceeding. Under the circumstances, we see no reason to exclude this committee note from the new rules.

Rule 10.320 (Nonparticipating Persons) is taken from existing rule 10.060(e) (Responsibility to Nonparticipating Parties), which requires the mediator to promote “consideration” of the interests of persons not participating in the mediation process who may be affected by its outcome. The new rule requires the mediator to promote “awareness” of interested persons.

Rule 10.330 (Impartiality) defines impartiality, prohibits activities that are contrary to impartiality, and provides when a mediator is obliged to withdraw due to an impairment of impartiality. The rule is taken from current rules 10.070(a) and 10.070(b)(5) which deal with mediator impartiality. The definition of “impartiality” contained in proposed rule 10.330(a) is taken from current rule 10.070(a). New rule 10.330(b) substantially changes the standard for when a mediator is obliged to withdraw due to an impairment of impartiality. Under existing rule 10.070(a)(2) a mediator must withdraw when the mediator “believes” he or she can no longer be impartial. Under the new rule, a mediator must withdraw if the mediator “is” no longer impartial. Proposed rule 10.330(c) combines existing rules 10.070(a)(3) and 10.070(b)(5). , It clarifies the prohibition against giving and accepting gifts, as well as the prohibition against soliciting future business.

Rule 10.340 (Conflict of Interest) clarifies when a conflict of interest disqualifies a mediator. It is a substantial rewrite of existing rule 10.070(b)(l-4). The new rule makes clear that a “mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest.” This would require a mediator to decline mediating a case presenting a clear conflict of interest, even when full disclosure has been made and a waiver by the parties has been received. It explains that a conflict of interest arises when “any relationship between the mediator and the mediation participants or the subject of the dispute compromises or appears to compromise the mediator’s impartiality.” New subdivision (d) replaces the current rule 10.070(b)(4) prohibition against providing counseling, therapy or legal services to any party during mediation with a broader rule. The new rule prohibits a mediator from creating any conflict of interest during mediation and specifically limits a mediator to providing services directly related to the mediation process.

Rule 10.350 (Demeanor)'is a new aspirational rule dealing with mediator demean- or. Rule 10.360 (Confidentiality) is substantively the same as existing rule 10.080 outlining the confidentiality requirement.

Rule 10.370 (Professional Advice or Opinions) replaces existing rules 10.090(a), (b), and (d) which deal with a mediator offering opinions and advice to the parties. The proposed rule emphasizes the fundamental proposition that mediators must preserve and respect the parties’ right to self-determination. Under the proposed rule, any technique or practice that impairs the parties’ rights to independently agree or not agree to a resolution of the conflict is inappropriate. Under subdivisions (a) and (c), if impartiality is maintained and the parties’ rights to self-determination are preserved, a mediator may provide information that the mediator is qualified to give, point out possible outcomes and discuss the merits of a claim or defense. With the basic tenets of the rule in mind, personal opinions intended to coerce the parties, decide the dispute, or direct a resolution are prohibited. Finally, the proposed rule retains the prohibition, found in existing rule 10.090(d), against the mediator offering an opinion as to how the court will resolve the dispute.

Dr. Firestone takes issue with proposed rule 10.370, expressing some of the same concerns he expressed in connection with the committee note to rule 10.310. Dr. Firestone believes subdivisions (a) and (c) of rule 10.370 further blur the distinction between arbitration and mediation by allowing the mediator to point out possible outcomes and discuss the merits of the case. He fears that this will cause family and dependency mediation to become more driven by the advocates than the parties.

In response to these concerns, the Committee explains that this proposal is the result of much debate over the two years of public hearings leading up to this proposal. The proposed rule was drafted in response to a substantial controversy that has arisen in the dispute resolution community concerning the propriety of the mediation technique referred to as the “evaluative” mediation approach. In this mediation style, the mediator, often at the request of the parties, makes and offers an independent judgment on the merits of issues under consideration and explains the likely outcome of litigation. Some, like Dr. Firestone, believe this technique shifts the process from one of facilitation to one of adjudication, while others believe it is a useful technique that should be employed in appropriate situations.

The Committee was made well aware of the philosophical disagreement surrounding the evaluative mediation approach during the two years of hearings that preceded these proposals. As noted above, this debate was specifically addressed by the Committee in relation to rule 10.370. In drafting the rule, the Committee accepted that a mediator, often at the request of the parties, may offer an independent judgment on the merits of a case and attempted to provide a framework for this situation which is consistent with the basic mediation principles of impartiality and party self-determination. As explained above, subdivisions (a) and (c) allow a mediator to “provide information that the mediator is qualified ... to provide” and “point out possible outcomes of the case and discuss the merits of a claim or defense,” only if impartiality and the parties’ self-determination will be preserved. The rule does not authorize the mediator to decide the case or act as an arbitrator. In fact, under subdivision (c),. the mediator is specifically prohibited from offering personal or professional opinion intended to decide the dispute or direct a resolution of any issue and from offering an opinion as to how the court will resolve the dispute.

In considering proposed rule 10.370, we have reviewed the differences of opinion surrounding the evaluative mediation technique, but believe that the Committee, with its broad expertise in both mediation and arbitration, is best equipped to address the dispute. Accordingly, we decline to second guess the Committee’s decision that this mediation technique should be recognized in the rules.

Rule 10.380 (Fees and Expenses) reorganizes existing rule 10.100 on fees and expenses. The guiding principles for setting fees have been moved to subdivision (b) of the new rule. A simplified rule requiring a written explanation of fees has been added. That new subdivision, (c) (Written Explanation of the Fees), allows the mediator to give the written explanation of the fee structure to the party or counsel.

Mediator’s Responsibility to the Mediation Process, Rules 10.400-10.430

Rules 10.400-10.430 include a collection of the specific ethical concerns affecting a mediator’s responsibility to the mediation process. These rules incorporate the concepts currently found in rules 10.060 (Self-Determination), 10.090 (Professional Advice), and rule 10.110 (Concluding Mediation). Rule 10.400 (Mediator’s Responsibility to the Mediation Process) contains a general statement of the mediator’s responsibility to the mediation process and provides an introduction for the succeeding rules.

Rule 10.410 (Balanced Process) is a rewrite of current rule 10.060(d)(A Balanced Process) and (f) (Mutual Respect), which provide that mediation be conducted in an evenhanded and mutually respectful manner. The new rule adds the requirement that the mediator encourage the participants to conduct themselves in a collaborative, non-coercive and non-adversarial manner.

Rule 10.420 (Conduct of Mediation) is taken from existing rules 10.050(a) (Orientation Process), 10.050(b) (Appropriateness of Mediation), 10.110(a)(1) (Full Agreement), 10.110(a)(3) (Integrity of the Agreement), 10.110(b)(1) (Termination by Participants), and 10.110(b)(2) (Termination by Mediator), which deal with the commencement of mediation and situations that lead to the adjournment or termination- of the process. New subdivision (a) provides a checklist of the fundamental items a mediator is required to inform all participants of at the outset of a mediation session. The majority of the listed items are taken from existing rule 10.050(a). New subdivision (b) distinguishes between situations calling for termination of mediation as opposed to those warranting a temporary adjournment. Finally, subdivision (c) of the proposed rule requires the mediator to take an active role in seeing that any agreements reached are properly documented.

Rule 10.430 (Scheduling Mediation) comes in part from existing rule 10.050(c) (Avoidance of Delays). This rule adds a requirement that mediation be scheduled to allow sufficient time for the parties to fully exercise their right to self-determination.

Mediator’s Responsibility to the Courts, Rules 10.500-10.530

Rules 10.500-10.530 include a collection of the specific ethical concerns affecting a mediator’s responsibility to the courts. The concepts found in this rule are derived from existing rule 10.040 (Responsibilities to Courts). Rule 10.500 (Mediator’s Responsibility to the Courts) explains that a mediator is accountable to the courts and any interaction with the court is subject to these ethical rules.

Rule 10.510 (Information to the Court) is taken from existing rule 10.040, and simply requires complete candor in all exchanges between the mediator and the presiding judge concerning the mediator’s qualifications, availability, and all other pertinent matters.

Rule. 10.520 (Compliance with Authority) is derived from current rules 10.030(a)(2)(A) and 10.040. However, it requires the mediator to “comply” with all relevant rules, regulations and laws, rather than simply “observe” them as required in the current rule. The rule incorporates requirements found in Chapter 44, Florida Statutes, various rules of court, local court rules, and administrative orders. It also allows for ethical ramifications should the mediator fail to comply with any of these provisions.

Rule 10.530 (Improper Influence) is derived from existing rule 10.040. It retains the general prohibition against any activity that has the appearance of improperly influencing a court to secure work but deletes the specific restriction against “giving gifts to court personnel.”

Mediator’s Responsibility to the Mediation Profession, Rule 10.600-10.690

Rules 10.600-10.690 include a collection of specific ethical concerns affecting a mediator’s responsibility to the mediation profession. These rules contain concepts found in existing rules 10.030 (General Standards and Qualifications), 10.120 (Training and Education), 10.130 (Relationships with Other Professionals), and 10.150(Advancement of Mediation). Rule 10.600 (Mediator’s Responsibility to the Mediation Profession) introduces a series of ethical standards designed to protect the quality of the mediation profession.

The first, rule 10.610 (Advertising) generally requires that advertising by a mediator be accurate and honest. It is taken from existing rule 10.130 with minor stylistic changes. Rule 10.620 (Integrity and Impartiality) is taken with only minor rewording from the existing rule 10.030(a)(1). Rule 10.630 (Professional Competence) requires a mediator to maintain professional competence and participate in educational activities promoting professional growth. It is derived from existing rules 10.030(a)(2) and 10.120(b).

Rule 10.640 (Skill and Experience) is derived from existing rule 10.030(a)(3), which requires a mediator to decline an appointment, withdraw, or request assistance when a case is beyond the mediator’s competence. The new rule substitutes the phrase “when the facts and circumstances of the case are beyond the mediator’s skill or experience” for the phrase “when the mediator decides that a case is beyond the mediator’s competence.”

Rule 10.650 (Concurrent Standards) is taken from existing rule 10.030(b), which requires a mediator to comply with other applicable ethical standards. The new rule adds a provision making clear that these ethical rules prevail over any conflicting ethical standards.

Rule 10.660 (Relationship with Other Mediators) replaces existing rule 10.140(a), which deals with a mediator’s ethical responsibility toward other mediators. Rather than trying to cover all instances in which an interaction between two mediators could occur, the rule provides a broad aspirational statement covering the topic.

Rule 10.670 (Relationship with Other Professionals) is a restatement of existing rule 10.140(b)(1). It restates the general rule that mediators should respect other professionals and promote mutual cooperation.

Rule 10.680 (Prohibited Agreements) is a revised version of existing rule 10.140(b)(2), which specifically prohibits employment agreements restricting the rights of a mediator to mediate after termination of a professional relationship. The new rule provides a more general proscription against a mediator restricting or limiting another mediator’s practice following termination of a professional relationship.

Rule 10.690 (Advancement of Mediation) combines existing rule 10.120(c), which encourages mediators to mentor new mediators, and rule 10.150, which encourages mediators to provide mediation services pro bono and sets forth the aspirational goal of supporting the advancement of mediation.

RULES FOR DETERMINING GOOD MORAL CHARACTER

At the recommendation of the Supreme Court Standing Committee on Mediation and Arbitration Training, the Committee on Mediation and Arbitration Rules proposes several amendments dealing with the process for determining the “good moral character” of an applicant for mediator certification. The amendments make minor changes to several existing rules and create two new rules setting forth a clear “good moral character” standard.

Current rule 10.010 (General Qualifications) which has been renumbered 10.100, contains, among other things, the requirement that an applicant for certification possess “good moral character.” However, the rule contains no definition of or procedure for enforcing that requirement. New rule 10.110 (Good Moral Character) defines the “good moral character” standard. It also establishes standards for determining good moral character. The criteria for determining whether an applicant meets the good moral character requirement is outlined in subdivision (c), which contains both objective and subjective criteria. Subdivisions (c)(2) and (c)(3) make any person convicted of a felony automatically ineligible for certification until restoration of civil rights, or if the applicant is on felony probation, until termination of probation. Subdivision (e)(4) lists factors to be considered in relation to any conduct which may raise a question regarding good moral character. The criteria for determining whether an applicant meets the good moral character requirement is outlined in subdivision (c), which contains both objective and subjective criteria. This list of factors is based on rule 3-12 of the Rules of the Supreme Court Relating to Admissions to the Bar, which is used in determining fitness to practice law.

Qualifications Complaint Committee

The Committee also proposes the creation of a Qualifications Complaint Committee (QCC), a committee of the Mediator Qualifications Board. Under newly created rules 10.720(3), 10.730(e), and 10.740(b), the QCC has exclusive authority to determine probable cause in relation to “good moral character” issues involving both applicants and certified mediators. As explained below, under new rule 10.800 the QCC reviews all questions concerning the good moral character of applicants and certified mediators and all discipline by a professional organization of which a mediator is a member.

Rule 10.800 (Good Moral Character; Professional Discipline) establishes a procedure by which the good moral character of applicants and certified mediators is reviewed. Subdivision (a) outlines the procedure to be followed when a “good moral character” issue arises in relation to both applicants and certified mediators. Under this procedure the Dispute Resolution Center reviews all applications and forwards questionable matters to the QCC. The Center also forwards to the QCC any credible evidence it becomes aware of which brings into question the current “good moral character” of a certified mediator. The QCC then can either dismiss the complaint or send it to a hearing panel. After the hearing, the panel can dismiss the charges, deny certification of an applicant, or impose sanctions on a mediator. Subdivision (b) provides a mechanism for review by the QCC any time the Dispute Resolution Center becomes aware that a certified mediator has been disciplined by a professional organization of which a mediator is a member.

Rule 10.810 (Committee Process) is derived from existing rule 10.220 (Complaint Committee Process). Reference to the QCC is added where appropriate and the rule is amended to accommodate the new procedures for determination of “good moral character.”

Rule 10.820 (Hearing Procedures) is derived from existing rule 10.230. The only significant change to this rule is the addition of subdivision (n) which substitutes the “preponderance of the evidence” standard in relation to applications for the “clear and convincing evidence” standard normally utilized in mediator disciplinary cases. Rule 10.830 (Sanctions) is derived from existing rule 10.240. Rule 10.850 (Confidentiality) is derived from existing rule 10.260. These amendments bring the rules into compliance with the procedure for determining “good moral character.”

Rule 10.880 (Supreme Court Review) is based on existing rule 10.290. The amendments to this rule provide for review of “good moral character” determinations.

THE MEDIATOR QUALIFICATIONS ADVISORY PANEL

Rule 10.900 (Mediator Ethics Advisory Committee) is a substantial rewrite of existing rule 10.300 (Mediator Qualifications Advisory Panel). The name of the advisory panel, which has been operating under the existing rule since July 1994, is changed to the Mediator Ethics Advisory Committee. The amendments are intended to increase the effectiveness and efficiency of the advisory committee. Among the more significant changes are the amendments to subdivisions: (c), which adds a dependency mediator to the committee; (d), which allows the committee to meet by telephone conference; and (e), which requires that a majority of all members concur in any advisory opinion. Also of significance is the amendment to subdivision (g), which clarifies the confidential nature of requests for advisory opinions. Subdivision (g) extends the confidentiality requirement to requests for an opinion, including any reference to any real person, firm, organization, or corporation identified. The confidentiality amendment applies to all opinions ever issued by the advisory committee.

Miscellaneous Amendments

Under the current rule 10.010, which has been renumbered 10.100 (General Qualifications), it was unclear whether a mediator must maintain a continued certification or licensure which was required for initial certification as a mediator. New subdivision (e) has been added to rule 10.100 to address this situation. Under this subdivision, the Qualifications Complaint Committee must review any adverse certification or licensure actions taken against a certified mediator, which relate to professional licenses or certifications necessary for certification as a mediator.

Existing rule 10.160 has been renumbered 10.700 (Scope and Purpose). The term “decertification” has been replaced with the term “suspension” to more accurately reflect the present disciplinary process.

Rule 10.730 (Mediator Qualifications Board) is based on existing rule 10.190. Subdivision (b)(6) of the rule is amended to afford dependency mediators representation on the Mediator Qualifications Board (MQB). Under this amendment, the Chief Justice has discretion to appoint one to three mediators with specific knowledge in the area of dependency mediation from each geographic division of the MQB. Rule 10.750 (Staff) is based on existing rule 10.210. The amendment clarifies that the Dispute Resolution Center provides all staff support necessary for the MQB to perform all the functions specified by these rules.

Accordingly, we adopt the new mediation rules and amendments as set forth in the attached appendix. Additions are indicated by underlining; deletions are indicated by strike-through type. These amendments shall become effective at 12:01 a.m., April 1, 2000.

¾ ⅛ so ordered,

HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

APPENDIX

FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS

PART I. MEDIATOR QUALIFICATIONS

Rule 40,010 10.100. General Qualifications

(a) County Court Mediators. For certification a mediator of county court matters must be certified as a circuit court or family mediator or:

(1) complete a minimum of 20 hours in a training program certified by the supreme court;

(2) observe a minimum of 4 county court mediation conferences conducted by a court-certified mediator and conduct 4 county court mediation conferences under the supervision and observation of a court-certified mediator; and

(3) be of good moral character.

(b) Family Mediators. For certification a mediator of family and dissolution of marriage issues must:

(1) complete a minimum of 40 hours in a family mediation training program certified by the supreme court;

(2) have a master’s degree or doctorate in social work, mental health, or behavioral or social sciences; be a physician certified to practice adult or child psychiatry; or be an attorney or a certified public accountant licensed to practice in any United States jurisdiction; and have at least 4 years practical experience in one of the aforementioned fields or have 8 years family mediation experience with a minimum of 10 media-tions per year;

(3) observe 2 family mediations conducted by a certified family mediator and conduct 2 family mediations under the supervision and observation of a certified family mediator; and

(4) be of good moral character.

(c) Circuit Court Mediators. For certification a mediator of circuit court matters, other than family matters, must:

(1) complete a minimum of 40 hours in a circuit court mediation training program certified by the supreme court;

(2) be a member in good standing of The Florida Bar with at least 5 years of Florida practice and be an active member of The Florida Bar within 1 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 5 years immediately preceding the year certification is sought;

(3) observe 2 circuit court mediations conducted by a certified circuit mediator and conduct 2 circuit mediations under the supervision and observation of a certified circuit court mediator; and

(4) be of good moral character.

(d) Dependency Mediators. For certification a mediator of dependency matters, as defined in Florida Rules for Juvenile Procedure 8.290(a) must:

(1) complete a supreme court certified dependency mediation training program as follows:

(A) 40 hours if the applicant is not a certified family mediator or is a certified family mediator who has not mediated at least 4 dependency cases; or

(B) 20 hours if the applicant is a certified family mediator who has mediated at least 4 dependency cases; and

(2) have a master’s degree or doctorate in social work, mental health, behavioral sciences or social sciences; or be a physician licensed to practice adult or child psychiatry or pediatrics; or be an attorney licensed to practice in any United States jurisdiction; and

(3) have 4 years experience in family and/or dependency issues or be a licensed mental health professional with at least 4 years practical experience or be a supreme court certified family or circuit mediator with a minimum of 20 mediations; and

(4) observe 4 dependency mediations conducted by a certified dependency mediator and conduct 2 dependency media-tions under the supervision and observation of a certified dependency mediator; and

(5) be of good moral character.

(e) Referral for Discipline. If the certification or licensure necessary for any person to be certified as a family or circuit mediator is suspended or revoked, or if the mediator holding such certification or li-censure is in any other manner disciplined, such matter shall be referred to the Mediator Qualifications Board for appropriate action pursuant to rule 10.800.

(e)(f) Special Conditions. Mediators who have been duly certified as circuit court or family mediators before July 1, 1990, shall be deemed qualified as circuit court or family mediators pursuant to these rules. Certified family mediators who have mediated a minimum of 4 dependency cases prior to July 1, 1997, shall be granted temporary certification and may continue to mediate dependency matters for no more than 1 year from the time that a training program pursuant to subdivision (d)(1)(B) is certified by the supreme court. Such mediators shall be deemed qualified to apply for certification as dependency mediators upon successful completion of the requirements of subdivisions (d)(1)(B) and (d)(5) of this rule.

Rule 10.110. Good Moral Character

(a) General Requirement. No person shall be certified by this Court as a mediator unless such person first produces satisfactory evidence of good moral character as required by rule 10.100.

(b) Purpose. The primary purpose of the requirement of good moral character is to ensure protection of the participants in mediation and the public, as well as to safeguard the justice system. A mediator shall have, as a prerequisite to certification and as a requirement for continuing certification, the good moral character sufficient to meet all of the Mediator Standards of Professional Conduct set out in rules 10.200-10.690.

(c) Initial Certification. The following shall apply in relation to determining the good moral character required for mediator certification:

(1) The applicant’s good moral character may be subject to inquiry when the applicant’s conduct is relevant to the qualifications of a mediator.

(2) A person who has been convicted of a felony shall not be eligible for certification until such person has received a restoration of civil rights.

(3) A person who is serving a sentence of felony probation shall not be eligible for certification until termination of the period of probation.

(4) In assessing whether the applicant’s previous conduct demonstrates a present lack of good moral character the following factors shall be relevant:

(A) the extent to which the conduct would interfere with a mediator’s duties and responsibilities;

(B) the area of mediation in which certification is sought;

(C) the factors underlying the conduct;

(D) the applicant’s age at the time of the conduct;

(E) the recency of the conduct;

(F) the reliability of the information concerning the conduct;

(G) the seriousness of the conduct as it relates to mediator qualifications;

(H) the cumulative effect of the conduct or information;

(I) any evidence of rehabilitation;

(J) the applicant’s candor during the application process; and

(K) disbarment or suspension from any profession.

Part II. STANDARDS OF PROFESSIONAL CONDUCT

Rule 10.020. Preamble

(a)-Scope; Purpose. — These-ruies-are intended to instill and promote-public-confidence in the mediation-process-and to be a — guide-to—mediator conduct. — As with other forms of dispute resolution,-mediation must be built on public -understanding and-confidence. — Persons serving as mediator-s-are responsible to the parties, the public--and.t-he -courts -to conduct them-selyes -in-a-manner which will merit that confidence; — These-rules- apply-to- all mediators who are certified or court-appointed. These-rules are also intended to serve as a guide to mediators’ conduct in discharging their professional responsibilities as mediators.

(b) Mediation Defined. — Mediation- is- a process whereby a neutral third party acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. — It is an informal ■ and non-adversarial process with the objective of helping the-di-sputing parties reach a mutually acceptable agreement.

(-c-)-Mediator’s-Role, — I-n-mediation—decision-making authority-rests with the parties. The role of the mediator includes but is -not limited to assisting the- parties-in identifying issues, — reducing obstacles to communication, maximizing the exploration of — alternatives—and—helping the parties reach voluntary agreements.

(d) General Principles, — Mediation is based -on principles of -communicationT-ne-gotiation, facilitation, and-problem-solving that-emphasize;-

(4)the needs-and interests- of the participants;

(-2) fairness;-

(3) procedural flexibility -

(4) privacy and confidentiality;

(5) full disclosure; and

(6) self determination.

Rule- 10,030, — General Standards au4 Qualifications

(a)-General, — Integrity,—impartiality,- and-professional competence are essential qualifications of any mediator, — Mediators shall adhere to the highest standards of integrity, — impartiality,—and—professional competence in rendering-fheir-professional service.

(1) A mediator shall not -accept any engagement, perform-any-service, or undertake any act which — would compromise the mediator’s integrity.

(2) A mediator shall maintain professional-competence in mediation skills including, but not limited to:

(A) staying informed-of-and abiding fe-y all-statutes, rules, and administrative -orders-relevant to the practice of court-ordered mediation;--

(B) ...if-cer-fified, continuing to meet the requirements of-these-rules; and

(C) regularly — engaging—in—eda-cational activities promoting professional growth.

(-3) A mediator shall decline appointment, withdraw-or request-technical assistance when the mediator-decides that a- case is beyond the mediator’s competence-

lb) Concurrent — Standards,-Nothing herein shall replace, eliminate, or render inapplicable relevant ethical-standards, not in- conflict with these rules, which may be imposed upon any mediator by virtue of the mediator’s professional-calling.

Rule 10.Q4Q, — Responsibilities to Courts

A mediator shall be candid,--accurate,- and fully responsive to a court concerning the mediator’s qualifications, availability, and all-other pertinent matters. — A mediator shall-observe all administrative- policies,--local rules of-court,-applicable procedural rules, and statutes. — A mediator is responsible to the judiciary-for the-propriety of the mediator’s activities and- must observe judicial standards of fidelity and diligence. — A-mediator shall -refrain- from any--activity which has ■ the-appearance of improperly- influencing--a-court to secure placement on a roster or appointment to a case, including gifts or other inducements to-court-personnel.-

Rule 10,050, The Mediation Process

(a) Orientation — Session,—On—eem-mencement of the.-mediation-session, a mediator shall inform- -all-parties-fhat the process-is-consensual -in-nature, that the mediator is an impartial — facilitator, and that the mediator may-nof4mpose or force any settlement on the parties.

(b) Appropriateness — of—Mediation, The mediator shall assist the- parties in evaluating-the benefits, risks, and-costs of mediation and alternative methods of problem solving available-to-them- — A mediator shall-not-unnecessarily or- inappropriately prolong a mediation session-if -it-becomes apparent that the-case-is unsuitable for mediation or if one-or-more of the parties is unwilling or unable to participate-in the mediation — process in a meaningful- manner ,-

(c) Avoidance of Delays, — A- -mediator shall plan a work schedule-so- that-present and future commitments will be fulfilled in a timely -manner. A mediator ■ shal-l-refrain from-accepting appointments when-it becomes apparent that-completion of the mediation assignments accepted.cannot be done-in-a-timely fashion. A-mediator shall perfor-m-the mediation services in-a-timely- and -expeditious fashion, -avoiding — delays wherever-possible.-

Rule 10.060. Self-Determination

(a) Parties’ Right to Decide. A mediator shall- assist the parties in reaching-an informed and voluntary settlement. — Decisions' are to be made voluntarily by the par-ties-themselves.

(b)-Prohibition of Mediator Coercion. A — mediator—shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party-to-ar-mediation-process.

(c) Prohibition of Misrepresentation. A mediater-shall not intentionally or knowingly misrepresent material facts or circumstances in the course of conducting-a mediation.

(d) A Balanced Process. — A—mediator shall-promote a balanced process and shall encourage-the'parties to conduct the mediation- deliberations- in — a- non-adversarial manner.

(e) Responsibility-to-Nonparticipating Parties. A mediator-shall-promote consideration-of the interests-of-persons affected by actual or potential-agreements who are not represented at the bargaining table.

(f) Mutual-Respect. — A mediator shall promote mutual respect among-the-parties throughout-the mediation process.

Committee-Notes ■

ifyhile-a mediator-has-mo duty to specifically advise a party as to the-legal ramifications or — consequences of a proposed agreement, there ⅛-a-daty-for-the mediator to advise the parties of the "importance of understanding such matters-and giving them-the-opportunity to seek such advice if they desire.

Rule-10.070. Impartiality

(a) Impartiality. — A^-mediator-shall be Impartial and advise-all-par-fies-of-any circumstances beating on possible bias, prejudice, or impartiality. — Impartiality -means freedom from favoritism- or bias in word, action, and appearance. — Impartiality implies a commitment to aid all partiesy-as opposed to an individual-party, in moving toward an agreement.

(1) A mediator- shall maintain impartiality while raising questions for the parties to consider as to-the reality, fairness, equity, and feasibility of proposed options for-settlement.

(2) A mediator shall withdraw from mediation if the.mediator-believes the mediator can no longer be-impartial.

(-8)-A--mediator shall not-give or accept a gift, request; favor, loan, or any other item of value-to or from-a-party,attorney, or any other person-involved in and arising from-any mediation process.

(b) Conflicts of Interest and Relationships; — Required -Disclosures; — Prohibitions.

(1) A mediator must disclose any current-past, or possible-future representation or consulting-relationship with any party or attorney-involved in the media-tiem — Disclosure must also be made of any pertinent pecuniary interest. — All such disclosures-shal-I be-made as soon as practical after the mediator becomes aware of the interest or the relationship.

(2)-A mediator — must disclose to the parties-or-to-the court involved-any close personal relationship or other circumstance, in addition to those specifically mentioned earlier--in- this rule, which might reasonably raise a question as to the mediators- impartiality. — All—such disclosures shall-be-made as soon as practical after the mediator — becomes aware-of-the-interest or the relationship.

(i-O-The -burden of disclosure rests on the mediator. — After appropriate disclosure, the mediator — may—serve-if both partiesuso-deslre..If the mediator believes or-perceives-that there is a clear conflict of-interest, he or she should withdraw, irrespective-of-the-expressed desires-of-the-parties.

(4)- A mediator shall not-previde-cean-sel-ing-or-therapy-to ■ either-party ■ during ■the mediation-process, nor shall a mediator — who is a -lawyer represent either party in any- matter-daring the media-tiem

(5) A mediator shall not use-fee mediation-process to solicit,- encourage,--er otherwise incur future professional services with either- party?

Committee-Netes-

The duty-fee- disclose potential-conflicts includes the fast of membership on a board of directors, full-time or part-time service as a representativo or advocate,-eonsultation work for-⅛ fee, current stock- or bond ownership (other than-mutual fund shares or appropriate trust arrangements-), or any other pertinent form of managerial, financial or immediate family-interest of the party-involved- A mediator who-is a member-of-a-daw firm is obliged to disclose any representational relationship the-member firm may have had with the parties.

Mediators establish-personal relationships- with many representatives, attorneys, — mediators, and other members of various professional associations. — There should be no attempt to be secretive about such-friendships or acquaintances,- but disclosure-is not necessary-unless some feature of a particular relationship-might reasonably-appear-to impair-impartiality.

Rule 10,080, Confidentiality

(a) Required, — A mediator shall preserve and maintain the confidentiality of all mediation proceedings except where required-by law to disclose-information.

(b) When Disclosure Permitted, — A mediator shall-keep confidential-from the other parties-any information-obtained in individual- caucuses unless-fehe-party to the caucus-permits- disclosing

(c) Records, A mediator shall maintain confidentiality-in the-storage-and- disposal of records and shall render anonymous all identifying information when materials are used for research, training, or--statistical compilations,

Rule 10,090, Professional-Advice

(a) Generally. — A mediator shall — net provide-information the mediator is not qualified by training or experience-to-pro-

(b) Independent Legal Advice, — When a mediator believes a party does-nob-u-n-derstand or appreciate-hew an agreement may adversely-affeet legal rights or obli-gatioasr-the mediator shall advise the participants to seek-independent legal counsel.

(c) When Party Absent. — If one of the parties-is unable to -participate in a mediation process for-psychological or physical reasons,- a mediator — should postpone or cancel mediation until such time as all parties — are able and — willing to resume. Mediators may refer the parties to-appropriate resources if necessar-y.

(d) Personal Opinion. — While a mediator may-point out possible-outcomes- of-fee case, under no circumstances may a mediator offer a personal or professional- opinion as to how the court in which the case -has been filed will resolve the dispute.

Committee Notes

Mediators who — are—attorneys should note Florida Bar Committee on Professional-Ethics, formal opinion 86-8 at 1239, which — states—feat—fee—lawyer-mediator should — “explain—the—risks- of ■■■proceeding without- independent counsel and advise the parties to consult-eeunsel during-fee course-of the mediation-and before-aigning any settlement-agreement-that he -might prepare-for them,”

Rule 10,100, Fees and -Expenses

(a)-General-Requirements, — A mediator occupies a position of trust with respect to the parties and-the.courts. — In charging for sendees and- expenses, the mediator must -be governed by the same high-standards ef-honor and integrity that apply -to all other phases-of the mediatorh work. — A mediator must-endeavor-to -keep total — charges -for- services and expenses reasonable and consistent -with the nature of fee -case. — If fees-are-charged,- a-mediator-shall give-avwritten explanation of the fees and related-costs, including time and manner of payment, to the parties prior to ■the — mediation-;—The-explanation shall include:

(1) the.-basis — for—and—amount—of charges, if any, for:

(A) mediation-sessions;

(-B)-preparation for sessions;

(C) travel time;

(D) postponement or cancellation of mediation-sessions by the parties and the circumstances-under which such eharges-will normally be assessed or waived;

(E)-preparation of the parties’ written mediation agreement; and

(-F-)-all — other items billed by the mediator; and

(2) the parties’-pro-rata share of mediation fees and -costs-if-previously determined by the- court or agreed to by the parties.

(b) Records. A mediator shaH-roaintain adequate records to -support charges for seryices-and-expenses and shall-make an accounting to the -parties or to the court apona?equest.-

(c) Referrals. — No - commissions, — rebates,- -or- similar remuneration- shall be given or received by a mediator for referral of clients for mediation or related services.

(d) Contingent Fees, A mediator shall not charge-a--contingent fee or base a fee in any manner on the outcome of the process.

(-e) — Principles.—A mediator should be guided by-the-following general-principles:

(-1) -Time -charges for a mediation session-should not be in excess-of- actual time spent or allocated for the session.

(2) Time — ehar-ges—for—preparation should-not-be-in excess of actual time spent.

(3) Charges for — expenses should be ■for expenses normally incurred-and reimbursable — in—mediation—eases—and should not exceed actual expenses.

(4)When time or expenses-involve 2 or more sets of parties on the same day or-trip, such time--and expense charges should be prorated appropriately.

(-5)-A- mediator may specify in advance ⅛-mi-nimum charge-for-a mediation-session- without violating-this ralm

(6) When a mediator is-contacted directly by the parties for mediation services, the mediator has a professional responsibility to.respond to questions regarding fees by providing--a copy of the- basis for charges for — fees--and ex-

Rule 10.1-10. Concluding Mediation

(a) With Agreement.

Cd-Pull Agreement. — The mediator shall cause the terms of any agreement reached to be memorialized appropriately-and discuss with the participants the process for formalization and implementation- of the agreement.

(-2)-Partial Agreement. — When the participants reach a partial- agreement, the -mediator shall — discuss the procedures-available to resolve the-remaining issues.

(3)-Integrity of the Agreement. The mediator-shall-not knowingly-a-ssist the parties in reaching- an -agreement which for reasons such as-fraud,--duress-,-overreaching, the abse-nce-of-bargaining ability, or unconscionability would be unenforceable.

(b) Without Agreement,

(1) Termination — by—Participants. The mediator-shall not require a participant’s further presence at.a-mediation conference when it is clear- the participant desires to withdraw.-

(2) Termination by Mediator,- - If the mediator believes-that-the participants are-u-nable or unwilling to participate meaningfully in the-process- or that an agreement is unllkel-y-,-the-mediator shall suspend or terminate.the mediation. The mediator should not prolong-unproductive discussions-that would-result in emotional aneb-monetary costs- to the participants. — The mediator shall not continue to provide mediation sendees where there is a complete absence of bargaining ability»

Committee -Notes-

Florida-Rule of Civil Procedure-l.-730(b) requires-that any agreement reached be reduced — fee writings — Mediators have an obligation-to insure-this rule is complied with, but-are not themselves required to write -the-agreement.

Rule 10.120. Training-and Education

(a)-Training. — A mediator is -obligated to acquire-knowledge and training -in the mediation- process, including an- understanding-of appropriate professional ethics, standards, and responsibilities. — Upon request, — a mediator' is required to disclose the extent and — nature of the mediator’s training and experience.

(b) Continuing Education, — It—is important that mediator-s-continue their professional education throughout the period of their- activo sendee. — A mediator shall be personally respons-Me for ongoing professional-growth-ine-lnding participation-in such continuing education as may be required-by-law.

(c) New Mediator Training, — An-experienced-mediator should cooperate in the training-of new-mediators, including serving as-a-mentor.

Rule 10,130. Advertising

All advertising by ■ a-mediator-mast represent-dionestly — the services to be rendered. — No claims of specific results or promises — which - imply- favoritism — to one side should be made-for the purpose of obtaining — business.—A—mediator—shaü make-only acc-u-rate-statements about the mediation process, its costs and benefits, and the mediator’s qualifications.

Rule- 10440. — Relationships with Other Professionals

(a) The Responsibility of the Mediator Teward-Other Mediators.

(1) Relationship with Other Mediators, — A mediator should -not mediate any dispute that, is being-mediated-by another mediator without first endeavoring to consult with the person or persons conducting such mediation.

(2) Co-Mediation, In those situations where more-than 1 mediator is participating in a-particular case, each mediator has a responsibility-to-keep-the others informed of developments essential to-a cooperative effort. — The wishes of the parties supersede the-interests-of the mediators.-

(b) Relationship with Other Profes-

(1) Cooperation. — A mediator should respect the relationship between' mediation and other professional disciplines including law, accounting, mental health-,- and the social services-and should promote — cooperation—between—mediators and other professionals.

(2) Prohibited Agreements. A mediator shall not-participate--in- offering-or making a partnership or employment agreement-fhat- restricts-the- rights-o-f-a mediator to practice-after- termination of the relationship, -exeept-an agreement concerning benefits upon retirement.

Rule 10,150, Advancement of Mediation

(a) Pro Bono Sendee, — Mediators have a professional-responsibility — to provide competent services to persens — seeking their assistance, including those unable to pay for such services. — As a means ■ of meeting-the needs of the financially disadvantaged, a mediator should provide mediation services pro bono-or at a reduced rate-of compensation whenever appropri-

(b) Support of Mediatiom — A mediator should support the advancement of mediation-by encouraging and participating in-research, evaluation, or-other-forms of professional — development—and—public—edu-eation.

RULE 10.200. SCOPE AND PURPOSE

These Rules provide ethical standards of conduct for certified and court-appointed mediators. They are intended to both guide mediators in the performance of their services and instill public confidence in the mediation process. The public’s use, understanding, and satisfaction with mediation can only be achieved if mediators embrace the highest ethical principles. Whether the parties involved in a mediation choose to resolve their dispute is secondary in importance to whether the mediator conducts the mediation in accordance with these ethical standards.

Committee Notes

2000 Revision. In early 1991, the Florida Supreme Court Standing Committee on Mediation and Arbitration Rules was commissioned by the Chief Justice to research, draft and present for adoption both a comprehensive set of ethical standards for Florida mediators and procedural rules for their enforcement. To accomplish this task, the Committee divided itself into two sub-committees and, over the remainder of the year, launched parallel programs to research and develop the requested ethical standards and grievance procedures.

The Subcommittee on Ethical Standards began its task by searching the nation for other states or private dispute resolution organizations who had completed any significant work in defining the ethical responsibilities of professional mediators. After searching for guidance outside the state, the subcommittee turned to Florida’s own core group of certified mediators for more direct and firsthand data. Through a series of statewide public hearings and meetings, the subcommittee gathered current information on ethical concerns based upon the expanding experiences of practicing Florida certified mediators. In May of 1992, The “Florida Rules for Certified and Court Appointed Mediators” became effective.

In the years following the adoption of those ethical rules, the Committee observed their impact on the mediation profession. By 1998, several other states and dispute resolution organizations initiated research into ethical standards for mediation which also became instructive to the Committee. In addition, Florida’s Mediator Qualifications Advisory Panel, created to field ethical questions from practicing mediators, gained a wealth of pragmatic experience in the application of ethical concepts to actual practice that became available to the Committee. Finally, The Florida Mediator Qualifications Board, the disciplinary body for mediators, developed specific data from actual grievances filed against mediators over the past several years, which also added to the available body of knowledge.

Using this new body of information and experience, the Committee undertook a year long study program to determine if Florida’s ethical rules for mediators would benefit from review and revision,

Upon reviewing the 1992 ethical Rules, it immediately became apparent to the Committee that reorganization, renumbering, and more descriptive titles would make the Rules more useful. For that reason, the Rules were reorganized into four substantive groups which recognized a mediator’s ethical responsibilities to the “parties,” the “process,” the “profession” and the “courts.” The intent of the Committee here wras to simply make the Rules easier to locate. There is no official significance in the order in which the Rules appear; any one area is equally important as all other areas. The Committee recognizes many rules overlap and define specific ethical responsibilities which impact more than one area. Clearly, a violation of a rule in one section may very well injure relationships protected in another section.

Titles to the Rules were changed to more accurately reflect their content. Additionally, redundancies were eliminated, phrasing tightened, and grammatical changes made to more clearly state their scope and purpose.

Finally, the Committee sought to apply what had been learned. The 2000 revisions are the result of that effort.

Rule 10.210. Mediation Defined

Mediation is a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.

Rule 10.220. Mediator’s Role

The role of the mediator is to reduce obstacles to communication, assist in the identification of issues and exploration of alternative