THE EIGHTH JUDICIAL CIRCUIT OF FLORIDA

ADMINISTRATIVE ORDER NO. 5.1070 (D)

FAMILY MEDIATION

            Whereas, mediation is a process whereby a neutral third person acts to encourage and facilitate resolution of litigant disputes prior to judicial determination in an informal, non-adversarial manner with the goal of helping the parties reach a mutually acceptable agreement. The mediation process has proven to be a judicial process that improves the efficiency and proper administration of justice for families and children; and

            Whereas, the statutory changes made by the legislature in the 2004 session requires the circuit to modify its procedures for family mediation. It is therefore

            ORDERED as follows:

MEDIATION OF FAMILY MATTERS AND ISSUES

            1.         The Eighth Judicial Circuit shall have a court Family Mediation Program which will include mediation in disputed family matters, juvenile dependency, domestic violence (limited mediation in appropriate cases), Department of Revenue cases, children and families in need of services cases, and grandparent visitation cases.

            2.         All court family mediation programs shall be administered and coordinated by the ADR Director, with assistance by Mediation Services Coordinators and administrative support staff, at the direction of the Chief Judge of the circuit.

Referral to Mediation

            3.         For purposes of this order, the term "family matters and issues" means disputed issues in marriage dissolution and post-dissolution proceedings and in domestic proceedings between unmarried parents, including but not limited to the following areas of dispute: dissolution of marriages; property division and equitable distribution; shared or sole parental responsibility; and child support, primary residence and parent access issues involving emotional or financial considerations not usually present in other circuit civil cases.

            4.          In any filed case that involves family matters and issues as defined above, the parties are hereby ordered to attend family mediation unless otherwise excepted by statute, rule, or court order. The parties are encouraged to schedule family mediation at an early stage of the proceedings pursuant to this administrative order. However, unless otherwise excepted by statute, rule, or court order, no later than the first case management conference, the court shall order compliance with this administrative order mandating mediation for all family matters or disputed portions thereof. No final hearing will be set in contested cases until the court has received a report from the mediator that includes the outcome of the case, including the attendance or non-attendance of the parties.

            5.         The court shall not refer any case to mediation if it finds there has been a history of domestic violence that would compromise the mediation process. Upon written motion with good cause shown, a party may apply to the court to extend the time for, waive, or toll the required mediation.

            6.         All mediators shall conduct themselves in a professional manner as required Florida statutes and the standards of professional conduct established by the Florida Rules for Certified and Court-Appointed Mediators.

Court Family Mediation Program Services and Procedures

            7.         The court Family Mediation Program shall be governed by applicable Florida Statutes and Rules of Procedure. The ADR Director in conjunction with the Chief Judge will develop other enabling policies, procedures, standard forms, schedules, and related information in keeping with this order.

            8.         Staff mediators, as well as contract mediators, shall provide program mediation services to eligible parties.

            9.         All party litigants shall have ten days from the date of the court's order directing compliance within which to schedule their first mediation session with the Family Mediation Program or a private mediator. In the event a mediator is not mutually agreed upon and selected within ten days, the petitioning party or the party's attorney shall contact the ADR Department for appointment of a mediator from the rotation list of certified mediators registered for appointment in this circuit. The mediation process shall not be used by any party to create delays in disposing of the case.

            10.       Unless otherwise excused by the court, the first mediation conference shall take place within 60 days of the order directing compliance and all mediations shall be concluded within forty-five days of the first mediation conference. 

            11.       While it may be desirable that attorneys for the parties attend the mediation sessions, attorney attendance is not required. Represented parties who attend mediation without their attorneys are strongly encouraged to review the contents of any proposed agreement emanating from mediation with their respective counsel of record as soon as possible and well within the ten-day period allowed for written objections to such agreement.

            12.       Except as otherwise provided by sections 44.401-406, Florida Statutes, verbal or written communications made during a mediation session or proceeding other than an executed settlement agreement shall be confidential and inadmissable in subsequent legal proceedings. Confidentiality shall be strictly maintained in accordance with law. Family mediators are not authorized to conduct, prepare, communicate nor submit evaluations and recommendations to the court, or otherwise professionally compromise their role as mediator with other inapplicable roles such as investigator, evaluator, therapist or legal advisor. Family mediators shall comply with required reporting procedures at the conclusion of mediation and shall report to the court and the ADR Director the fact of attendance or non-attendance of the parties at all required mediation sessions or conferences, the existence or non-existence of mediated agreements or mediated partial agreements, and such other information to which both parties agree in writing.

            13.       Once a mediation is scheduled and noticed by the program, it may only be cancelled by mutual agreement of the parties or order of the court.

            14.       If either party fails to appear at a scheduled mediation session without good cause, the program mediator shall provide the judge and both parties with a notice of such failure to appear. Willful refusal to schedule a required mediation or failure to appear at a scheduled mediation without good cause shall place the offending party in jeopardy of sanctions by the court, including contempt of court, assessment of mediator and attorney fees and other costs, the striking of pleadings or portions thereof, and/or other appropriate sanctions, and the court may issue an order to show cause as to why the court should not assess fees and costs against the responsible party or parties.

Fees, Funding and Eligibility for the Family Mediation Program

            15.       Funding of the court Family Mediation program shall be from state general revenues as appropriated by the legislature, trust fund or cost recovery of mediation user fees, and by any other available sources such as grants or county revenues.

            16.       User fees shall be established pursuant to section 44.108, Florida Statutes, and shall be collected by the clerk of court. The clerk of the court shall provide an accounting of all collections to the ADR Director and court finance office on a monthly basis.

            17.       When the combined gross income of the parties is less than $100,000, the case shall be eligible to use the court Family Mediation Program services. The parties are presumed to have the ability to hire a private mediator when the combined gross income of the parties is $100,000 or greater, unless the court finds that there are extraordinary circumstances which make the parties unable to afford a private mediator.

            18.       In the event payment for services is not made by a party in a timely manner, or if either party does not attend a scheduled mediation session or provide sufficient notice of cancellation (by mutual agreement of the parties forty-eight hours in advance), the offending party will remain responsible for his or her fee for that session as well as for any subsequently scheduled session.

            19.       If contract mediators are utilized, contract mediators shall be compensated as authorized by their executed Professional Services Agreement with the court. Prior to the appointment of a contract mediator, the ADR Director shall determine that sufficient funds are available for that purpose.

Private, Non-Program Mediators

            20.       In those cases involving parties who are not eligible for court Family Mediation Program services, or those who choose not to use court Program Mediation services, private mediators shall be utilized. Compensation of private mediators shall be paid by the parties as they agree in advance in writing, or as otherwise ordered by the court. In the absence of an agreement providing for the mediator’s compensation, the mediator shall be compensated at the hourly rate set by the presiding judge in the referral order. Parties may object to the rate of the mediator’s compensation within 15 days of the order of referral. On behalf of the Chief Judge, the ADR Director shall maintain a listing of private Supreme Court certified mediators who have registered for appointment in this circuit and who are willing to serve the Eighth Judicial Circuit for private mediation referral purposes on a rotating basis.

Statistical Reporting For Program and Private Mediators

            21.       For statistical purposes and in order to assist in tracking the use of family mediation in the circuit, copies of mediation outcome reports shall be filed by the mediator in the court file and a copy shall be furnished to the circuit ADR Director. In addition, all private mediators shall provide the circuit ADR Director with quarterly statistical information on all private family mediation cases that includes the case numbers of cases mediated and results of each mediation for that quarter.

            22.       For purposes of monitoring, developing, and improving the court Family Mediation Program, all parties ordered to mediation may be requested to provide statistical but non-identifying information or data on standardized forms regarding themselves, the mediators, and other administrative or procedural aspects of the mediation process. Results of such data may be published for statistical and administrative purposes, but will remain confidential in its non-identifying and generic nature. To that extent, such statistical data and information is not deemed a violation of any confidentiality standards as otherwise required by sections 44.401-406, Florida Statutes (2004), regarding communications made during a mediation session or proceeding

Juvenile Dependency Mediation

            23.       A Juvenile Dependency Mediation Program shall be established in the circuit.

            24.       Only those cases referred by the court shall be processed through the Juvenile Dependency Mediation Program.

            25.       Except as otherwise provided by sections 44.401-406, Florida Statutes (2004), verbal or written communications made during a mediation session or proceeding other than an executed settlement agreement shall be confidential and inadmissable in subsequent legal proceedings. Confidentiality shall be strictly maintained in accordance with the law.

            26.       Willful refusal to schedule or failure to appear at a scheduled mediation, without good cause, shall place the offending party in jeopardy of sanctions by the court, including contempt of court, assessment of mediator and attorney fees and other costs, the striking of pleadings or portions thereof, and/or other appropriate sanctions.

DOMESTIC VIOLENCE LIMITED MEDIATION

            27.       Disputed family matters are often at issue in cases where the court has decided that a permanent injunction against domestic violence should be entered. The issues remaining after the court has decided to enter the injunction may include child custody, care or visitation, as well as financial matters. These matters may be mediated by the court Family Mediation Program in accordance with the policies and procedures established in the circuit’s Domestic Violence Limited Family Mediation Protocol. The procedures for this program, including screening criteria, were established with significant input from the local domestic violence center (Peaceful Paths) in collaboration with the court Family Mediation Program, Administrative Judge of the Family Law Division, and the Clerk of Court.

            28.       The issues to be mediated shall not include the domestic violence itself nor the entry of an injunction against domestic violence.

            29.       Only those cases referred by the court shall be processed through the Domestic Violence Limited Family Mediation Program.

            30.       No case shall be referred if the court finds there has been a significant history of domestic violence which would compromise the mediation process or endanger any participant in the process.

            31.       Any party referred to mediation by the court shall have the unconditional right to decline to participate or withdraw from mediation at any time and the case shall be returned to the court by the mediator without comment other than “no agreement reached.”

            32.       Except as otherwise provided by sections 44.401-406, Florida Statutes, verbal or written communications made during a mediation session or proceeding other than an executed settlement agreement shall be confidential and inadmissable in subsequent legal proceedings. Confidentiality shall be strictly maintained in accordance with the law.

DEPARTMENT OF REVENUE MEDIATION

            33.       Department of Revenue initiated cases may be mediated by the court Family Mediation Program in accordance with the policies and procedures established by the court Family Mediation Program, the Child Support Enforcement Hearing Program, and the Administrative Judge of the Family Law Division. Where such procedures conflict with the Family Mediation procedures above, procedures established pursuant to this paragraph will govern.

CHILDREN AND FAMILIES IN NEED OF SERVICES MEDIATION

            34.       Children and Families in Need of Services cases may be mediated by the court Family Mediation Program.  

            35.       A case may be referred to mediation at any stage of the proceeding. The court may order mediation upon referral by the case staffing committee, referral by any of the parties or on its own.

            35.       Except as otherwise provided by sections 44.401-406, Florida Statutes, verbal or written communications made during a mediation session or proceeding other than an executed settlement agreement shall be confidential and inadmissable in subsequent legal proceedings. Confidentiality shall be strictly maintained in accordance with the law.

            37.       Willful refusal to schedule or failure to appear at a required and scheduled mediation, without good cause, shall place the offending party in jeopardy of sanctions by the court, including contempt of court, assessment of mediator and attorney fees and other costs, the striking of pleadings or portions thereof, and/or other appropriate sanctions.

GRANDPARENT VISITATION MEDIATION

            38.       Grandparent Visitation Mediation cases may be mediated by the court Family Mediation Program.

            39.       A case may be referred to mediation at any stage of the proceeding.

            40.       Except as otherwise provided by sections 44.401-406, Florida Statutes, verbal or written communications made during a mediation session or proceeding other than an executed settlement agreement shall be confidential and inadmissable in subsequent legal proceedings. Confidentiality shall be strictly maintained in accordance with the law.

            41.       Willful refusal to schedule or failure to appear at a required and scheduled mediation, without good cause, shall place the offending party in jeopardy of sanctions by the court, striking of pleadings or portions thereof, and/or other appropriate sanctions.

             42.       This administrative order replaces Administrative Order No. 1.070(C), dated July 5, 1996.

            ORDERED on January 31, 2005, nunc pro tunc to October 1, 2004.

                                                                                    /s/        

                                                                        STAN R. MORRIS, CHIEF JUDGE