The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
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There is no overlap between an order compelling arbitration of a claim pursuant to section 682.03, Florida Statutes ; and a referral to mediation or arbitration under rules of civil procedure like 1.700. The statutory provisions of chapter 682 effectuate a policy that courts uphold and enforce contractual agreements to arbitrate. The mediation and arbitration rules are adjunct to the Legislature's separate policy in favor of voluntary dispute resolution, as set out in chapter 44, Florida Statutes. See, e.g. , § 44.102( 1), Fla. Stat. (providing for court-ordered mediation in accordance with "rules of practice and procedure adopted by the Supreme Court"); § 44.103(1) (providing for court-ordered, nonbinding arbitration in accordance with "rules of practice and procedure adopted by the Supreme Court"); cf. § 44.104, Fla. Stat. (providing for "voluntary binding arbitration" by written agreement, "in lieu of litigation," after a "civil dispute" has arisen). The two processes are mutually exclusive, so the trial court's referral to arbitration under rule 1.700 was in direct contravention of this court's mandate affirming its earlier order compelling arbitration and staying…
Section 44.102, Florida Statutes, permits a court to order parties to engage in mediation and provides that "[c]ourt-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court." Areizaga v. Bd. of Cnty. Comm'rs of Hillsborough Cnty., 935 So. 2d 640, 643 (Fla. 2d DCA 2006) (citation omitted). Florida Rule of Civil Procedure 1.720, governing mediation procedures, expressly authorizes the imposition of sanctions upon a party as a penalty for failing to appear at a duly noticed mediation conference. Fredericks v. Sturgis, 598 So. 2d 94, 96 (Fla. 5th DCA 1992) ; Fla. R. Civ. P. 1.720(f).
At an evidentiary hearing on the motion to enforce settlement, the buyer objected to testimony regarding the parties’ mediation communications, based on section 44.102(3), Florida Statutes (2001), which then provided:
The trial court relied on sections 44.405(1) and 44.102(3) as the statutory bases for exempting the Shade Meeting transcript from disclosure. Section 44.405(1) states: "(1) Except as provided in this section, all mediation communications shall be confidential . A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant's counsel ." § 44.405(1), Fla. Stat. (2017) (emphasis added). Section 44.102(3) states: "All written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119." § 44.102(3), Fla. Stat. (2017) (emphasis added). Section 44.102(3) is a particularly key provision, since it expressly provides an exemption from chapter 119.
Article II, section 3 of the Florida Constitution prohibits one branch of government from exercising any of the powers of the other branches. Further, article V, section 2(a) provides this Court the exclusive authority to "adopt rules for the practice and procedure in all courts." Art. V, § 2(a), Fla. Const. The Legislature may only repeal the rules of this Court by "general law enacted by two-thirds vote of the membership of each house of the legislature." Id. First, the amendment was not written to repeal Frye or Marsh but to overrule this Court's decision. See Fla. HB 7015, preamble (2013) (available at www.flsenate.gov/Session/Bill/2013/7015) ("the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh ...". The vote here did not meet the requirement. The House passed the bill with a majority, 70 to 41 (or 58.3% of the membership). The Senate passed the bill with more than the necessary two-thirds vote, 30 to 9 (or 75% of the membership). Id. We have previously found that the Legislature exceeded its authority in adopting statutes we found to infringe on the authority of this Court to determine matters of practice or…
1995 Revision: The Committee believed the rule regarding confidentiality should be amended in deference to the 1993 amendment to section 44.102, Florida Statutes, that engrafted an exception to the general confidentiality requirement for all mediation sessions for the purpose of investigating complaints filed against mediators. Section 44.102(4)specifically provides that "the disclosure of an otherwise privileged communication shall be used only for the internal use of the body conducting the investigation" and that "[Prior] to the release of any disciplinary files to the public, all references to otherwise privileged communications shall be deleted from the record."
ii. The presiding judge may sua sponte evaluate and determine, on a case-by-case basis, whether a case should be referred to mediation in accordance with section 44.102, Florida Statutes and Florida Rule of Civil Procedure 1.700(a).
Sections 44.302 and 44.304, Florida Statutes, were later renumbered as sections 44.102 and 44.104, Florida Statutes, respectively.
Rather than providing for an award of fees, section 44.102(6) alters the time limits for making and accepting an offer of judgment. Section 44.102(6)(a) tolls the time periods of section 768.79 as incorporated into Florida Rule of Civil Procedure 1.442 from the date of the order of mediation until the mediation is complete. The result is that a party may have more than the thirty days required by section 768.79 and rule 1.442 to accept an offer. Section 44.102(6)(b) allows a party to make an offer of judgment after mediation ends. As a result, a party may have less than the thirty days required by section 768.79 and rule 1.442 to consider and accept an offer. We have held that the time limits for acceptance of an offer of judgment, like those provided in section 44.102(6), are procedural. Accordingly, we read section 44.102(6) as setting forth only procedural requirements.
Section 16.60 says nothing about when mediation is appropriate or required. It appears to concern disputes that have not reached the stage of a court action. The only requirement for mediation is contained in section 44.102, but that statute, similar to rule 3.852( l)(3), states that "[c]ourt-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court." § 44.102(1). In other words, the legislature implicitly stated that section 44.102 and rule 1.710(b) do not conflict but rather must be applied in harmony.
. . . Likewise, we found the time requirements established by the Legislature in section 44.102, Florida Statutes . . .
. . . the-rule regarding-.confidentiality should be -amended in deference--to- the 1993 amendment- -to section 44.102 . . . mediation-- sessions- for the pur-pose-of-in-vestigating complaints-filed against media-ter&—Section 44.102 . . . the rule regarding confidentiality should be amended in deference to the 1993 amendment to section 44.102 . . . Section 44.102(4) specifically provides that “the disclosure of an otherwise privileged communication . . .
. . . cases, including referral of cases to mediation on a case-by-case basis in accordance with section 44.102 . . . on a case by case basis, whether the case should be referred to mediation in accordance with section 44.102 . . . on a case-by-case basis, whether a case should be referred to mediation in accordance with section 44.102 . . .
. . . Sections 44.302 and 44.304, Florida Statutes, were later renumbered as sections 44.102 and 44.104, Florida . . .
. . . The court stated “[rjather than providing for an award of fees, section 44.102(6) alters the time limits . . . Therefore, in finding the statute unconstitutional, the Kneal-ing court was persuaded by section 44.102 . . . Id. at 595-96 (quoting § 44.102, Fla. Stat. (1993)). . . . Section 44.102(6)(b) allows a party to make an offer of judgment after mediation ends. . . . Accordingly, we read section 44.102(6) as setting forth only procedural requirements. . . .
. . . Section 44.102(2)(a) and (b) set forth the circumstances under which courts are required to or merely . . . The only requirement for mediation is contained in section 44.102, but that statute, similar to rule . . . mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court.” § 44.102 . . . In other words, the legislature implicitly stated that section 44.102 and rule 1.710(b) do not conflict . . .
. . . In an earlier appeal of this case, we held that the settlement privilege contained in section 44.102( . . .
. . . Relying on section 44.102(3), Florida Statutes (2001), the Sunset Association moved for sanctions, complaining . . . Section 44.102(3), Florida Statutes (2001), reads in pertinent part: “Each party involved in a court-ordered . . . Section 44.102(3) grants a privilege to “each party involved in a mediation proceeding” to refuse to . . . As a result it is clear that it was not a violation of section 44.102(3) for the developer to have disclosed . . .
. . . claims that the trial court exceeded its authority in considering evidence in violation of section 44.102 . . . See § 44.102(3), Fla. Stat. (2000); DR Lakes, Inc. v. . . .
. . . settlement, buyer objected to any testimony as to what occurred at the mediation hearing based on section 44.102 . . . There is, of course, no confidentiality as to “an executed settlement agreement.” § 44.102(3). . . .
. . . Specifically, in Knealing, we found that section 44.102, Florida Statutes (1993), which only altered . . .
. . . In Knealing, the supreme court found section 44.102(6)(b), Florida Statutes (1993), which allows a party . . . The court stated “[rjather than providing for an award of fees, section 44.102(6) alters the time limits . . . Therefore, in finding the statute unconstitutional, the Knealing court was persuaded by section 44.102 . . . The court held that it could not apply that reasoning to section 44.102(6) because of its purely procedural . . .
. . . See § 44.102(2), Fla. Stat. (2000). . . . See § 44.102(3)-(4), Fla. Stat. . . . See § 44.102(1). . . .
. . . Disclosing this information was in violation of section 44.102(3), Florida Statutes (2000) , which makes . . . The petitioner further argued that “section 44.102(3) establishes an unavoidable presumption of contamination . . . Section 44.102(3) does in fact give each party to the mediation the privilege to refuse to disclose and . . . Section 44.102(3) reads as follows: Each party involved in a court-ordered mediation proceeding has a . . .
. . . This rule was amended to reconcile, where possible, sections 44.102(6) (formerly 44.102(5)(b)), 45.061 . . . The reporting requirements are intended to ensure the confidentiality provided for in section 44.102( . . .
. . . Specifically, in Knealing, we found that section 44.102, Florida Statutes (1993), which only altered . . .
. . . hearing petitioner’s underlying motion, the trial court properly referred it to mediation, see section 44.102 . . .
. . . $125,000 demand for judgment (the 1996 demand) on Perry, C & S, and Ryder jointly, pursuant to sections 44.102 . . .
. . . the rule regarding confidentiality should be amended in deference to the 1993 amendment to section 44.102 . . . Section 44.102(4) specifically provides that “the disclosure of an otherwise privileged communication . . .
. . . See section 44.102(3), Florida Statutes (1999), which provides in pertinent part: Each party involved . . .
. . . In the committee notes, it states that rule 1.442 was amended to reconcile, where possible, sections 44.102 . . . (6) (formerly 44.102(5)(b)), 45.061, 78.082, and 768.89, Florida Statutes, and the decisions of the Florida . . .
. . . This much is made abundantly clear to me by subsection (b) of section 44.102, which states: “Sections . . . See § 44.102, Fla. Stat. (1995). . See Fla.R.Civ.P. 1.700-1.750. . . . .
. . . prejudice was an unduly harsh sanction for a violation of the non-disclosure requirements of section 44.102 . . . confidentiality stipulation, and that the acts of appellant ran “afoul of the statutory language of Fla.Stat. 44.102 . . . Section 44.102(3), Florida Statutes (1993), provides in relevant part: Each party involved in a court-ordered . . . Section 44.102(3) not only provides that communications in a mediation proceeding shall be confidential . . .
. . . The offer of judgment was purportedly made pursuant to section 44.102, Florida Statutes (1995). . . . Puleo, 675 So.2d 593 (Fla.1996), the Florida Supreme Court declared section 44.102 unconstitutional. . . . In doing so, it noted that section 44.102 did not provide a substantive basis for an award of fees; it . . . 45.061, or an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled _ § 44.102 . . .
. . . Specifically, in Knealing, we found that section 44.102, Florida Statutes (1993), which only altered . . .
. . . This rule was amended to reconcile, where possible, sections 44.102(6) (formerly 44.102(5)(b)), 45.061 . . .
. . . impasse on April 13, 1995, and on the next day, the Moons made an offer of judgment “pursuant to § 44.102 . . . (1989), allowed a party thirty days to accept the offer, no such time limitation appears in section 44.102 . . . In Knealing, an offer of judgment was served eleven days prior to trial, pursuant to section 44.102(6 . . . In holding section 44.102(6) unconstitutional, the Florida Supreme Court stated, “Based on our conclusion . . . that section 44.102(6) is unconstitutional, we hold that an offer of judgment made after an unsuccessful . . .
. . . certified the following question to be of great public importance: DO THE TIME REQUIREMENTS IN SECTION 44.102 . . . The district court’s question is based upon its conclusion that section 44.102(6)(b) enlarges the time . . . Section 44.102(6)(b) allows a party to make an offer of judgment after mediation ends. . . . Accordingly, we read section 44.102(6) as setting forth only procedural requirements. . . . section 44.102(6)(a) violated the separation-of-powers doctrine. . . .
. . . defendant served upon plaintiff an offer of judgment in the amount of $270,000 pursuant to section 44.102 . . . motion was denied and this appeal followed. / Defendant’s offer of judgment was made pursuant to section 44.102 . . . The provisions of section 768.79, Florida Statutes, are applicable to offers made pursuant to section 44.102 . . .
. . . Specifically, the Ongs argued (1) that pursuant to the terms of section 44.102(6)(a), the thirty-day . . . He maintains that, by enacting section 44.102(6)(a), the legislature unconstitutionally infringed upon . . . We must first determine whether Guido is correct that the tolling provisions of section 44.102(6)(a) . . . Applying these definitions, we conclude that section 44.102(6)(a)’s tolling provision is intended to . . . Section 44.102(5), Florida Statutes (1991) was later renumbered 44.102(6), Florida Statutes (1993), but . . .
. . . the rule regarding confidentiality should be amended in deference to the 1993 amendment to section 44.102 . . . Section 44.102(4) specifically provides that “the disclosure of an otherwise privileged communication . . .
. . . The issues concern, in ter alia, the relationship between sections 44.102 and 768.79, Florida Statutes . . . However, section 44.102, Florida Statutes (1993) (Court-ordered mediation), provides in pertinent part . . . We hold that by specifically referencing section 768.79 in section 44.102(6), the legislature left no . . . The provisions of section 768.79 and section 44.102(6)(b) are, in fact, consistent with one another in . . . was error for the trial court to determine that the Púleos’ offer was untimely, based upon section 44.102 . . .
. . . Second, the court relied on section 44.302(2), Florida Statutes (1989) [subsequently renumbered § 44.102 . . .
. . . . § 44.102(3) and that pursuant to Fla. . . . Fla.Stat. § 44.102(3) provides that: Each party involved in a court-ordered mediation proceeding has . . .
. . . Our conclusion here is not altered by Florida Statutes Section 44.102(5)(b), (1991), which provides: . . . offeror failed to inform offeree at time it served its demand for judgment that it intended to rely on § 44.102 . . . Since the Caruanas’ offer did not indicate an intent to rely on § 44.102(5)(b), they may not now benefit . . . This subsection is now § 44.102(6)(b). . . .
. . . Section 44.102(3), Fla.Stat. (1989); Robbie v. City of Miami, 469 So.2d 1384 (Fla.1985); Izadi v. . . .
. . . None of the demands for judgment served by FMHS on Nordyne referred to section 44.102. . . . Section 44.102(5)(b), which was added to a statute dealing with court-ordered mediation effective October . . . To the extent that section 44.102(5)(b) purports to amend both section 45.061 and section 768.79, it . . . We believe that section 44.102(5)(b) likewise intrudes upon the rulemaking power of the judicial branch . . . Accordingly, in our opinion, the provisions of section 44.102(5)(b) must yield to those of section 768.79 . . .
. . . Hudson, 600 So.2d 7 (Pla. 4th DCA 1992); § 44.102(3), Fla.Stat. (1991). . . .
. . . Section 44.102(3), Florida Statutes (1991), contains the following: Notwithstanding the provisions of . . . the disclosure itself, but argues essentially that the mere act of disclosure or violation of section 44.102 . . .
. . . Section 44.102(3), Fla.Stat. (Supp.1990). . . .
. . . Professional Conduct for Certified and Court-Appointed Mediators, 604 So.2d 764, 768 (Fla.1992); § 44.102 . . .
. . . Statutory References § 44.102(3), Fla.Stat. §§ 90.501-510, Fla.Stat. . . .
. . . Section 44.102(3), Florida Statutes (Supp. 1990), the statutory court-ordered mediation provision, provides . . .
. . . SANCTIONS Section 44.102, Florida Statutes, permits a court to order parties to engage in mediation. . . .