Friday, September 6, 2019

Mediation & Arbitration in Florida Probate Rules?

Proposed amendments to the Florida Probate Rules are out for comment. These amendments allow for  the use of mediation and arbitration. "The amendments provide that the court may refer all or any part of a contested probate or guardianship matter to mediation or arbitration, thereby empowering courts and parties with the option of using non-adversarial dispute resolution processes to resolve these disputes."

Here's some info about the proposed rules:

Rule 5.181 Rules Common to Mediation and Arbitration(a)Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested probate or guardianship matter to mediation or arbitration. The parties to any contested probate or guardianship matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral. (1)Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral. (2)Notice. Within 15 days after the designation of the mediator or arbitrator, the court or its designee, who may be the mediator or the arbitrator, shall notify the parties in writing of the date, time, and place of the conference or hearing, unless the order of referral specifies the date, time, and place. (b)Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration, if: (1)the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law; (2)the issue presents a question of law only; (3)the order violates rule 1.710(b) or rule 1.800; or(4)other good cause is shown.

(c)Motion to Defer Mediation or Arbitration. Within 15 days of the order of referral, any party may file a motion with the court to defer the proceeding. The movant shall set the motion to defer for hearing prior to the scheduled date for mediation or arbitration. Notice of the hearing shall be provided to all interested parties, including any mediator or arbitrator who has been appointed. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation or arbitration shall be tolled until disposition of the motion.

(d)Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying themselves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.

Proposed Rule 5.182, "Mediation Rules", provides the parties can agree to mediation or the court can order it on the court's own motion.  However, section 5.182(b) precludes from mediation matters concerning bond, contempt and other matters as determined in an administrative order. Likewise, Proposed Rule 5.185 covers matters excluded from arbitration. Proposed Rule 5.183 covers procedures for mediation and proposed rule 5.184, completing mediation.

The proposed rules are available here.

https://lawprofessors.typepad.com/elder_law/2019/09/mediation-arbitration-in-florida-probate-rules.html

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