Business Law 101 / Alternative Dispute Resolution

By Albert L. Kelley

When I was in law school, the State started pursuing a new method of resolving lawsuits.  It was called Alternative Dispute Resolution and consisted of various activities that the Courts could use to resolve disputes without proceeding to litigation. In 1987 the legislature passed comprehensive judicial reform that allowed civil judges to refer cases to mediation or arbitration.  At Florida State University, our Dean, Talbot “Sandy” D’Alemberte (who later became the President of Florida State University and the President of the American Bar Association) started a program to educate students on ADR. As a result, I was able to watch the development of the ADR program through the state. Over the years, the law has been changed many times to create specified rules, procedures, and licensing.  Today the ADR program is highly regulated and is big business in the judicial field.

Initially the ADR programs were funded by the individual counties.  This left some counties with no ADR program.  In 2004, funding for the program was taken over by the State to ensure everyone in Florida had access to an ADR program. The State also set up a Dispute Resolution Center.  This Center established education requirements for mediator and arbitrator certification.  Mediators may be certified in county, circuit, family, dependency or appellate courts.

As of August 2017, there were 5,674 mediators in Florida.  The majority of them (3,216) were circuit court mediators, and the fewest (467) were appellate. County and family each had just over 2,000 and dependency had just over 200.  It is possible for one person to have more than one certification. In other words, a mediator may be licensed in County and Civil.  Mediators are licensed for a two year period.  To renew their license for an additional two year period, the mediator must complete 16 continuing education hours within the two year period.  These continuing education hours are specific to the type of certification. For example, a circuit court mediator must include in the 16 hours, 4 hours on mediator ethics, two hours of domestic violence and one hour of diversity training.  In addition, at least eight of the hours must be a live presentation (the remaining eight hours may be by a recorded presentation.

Mediators must follow the rules set out by the DRC or they can face disciplinary actions. Sanctions include oral admonishment, written reprimand, additional training, restrictions on what types of cases may be mediated, supervision, suspension, or decertification.

Today, mediation has expanded from the litigation field to administrative law and even in some cases criminal.  There are mediation programs used by the Department of Insurance, the Division of Mobile Homes of the Department of Business and Professional Regulation, and the Workers Compensation Division of the Department of Labor and Employment Security.  It is also used by the Securities and Exchange Commission, the Equal Employment Opportunity Commission. It is also being used by a number of private organizations, including insurance companies.

Next week we will go into more details about the mediation process.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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