[*] My thoughts on this topic have been greatly enhanced by my participation on a panel at the annual meeting of the Association of American Law Schools (AALS) in January 1994, discussing "What Happens When Mediation Is Institutionalized? To the Parties, Practitioners, and Host Institutions," and my participation in a Festschrift in March 1994, honoring Robert Coulson upon his retirement from the American Arbitration Association. Special thanks to Dean James Alfini and Professor Jean Sternlight, who reviewed drafts of this Article, and to Professor Joseph Stulberg, who invited me to participate in the Festschrift. Return to text.

[**] Director, Florida Dispute Resolution Center. B.A., George Washington University, 1983; J.D., National Law Center, George Washington University, 1986. The author has worked for the last eight years at the Center, which is a joint program of the Florida Supreme Court and Florida State University College of Law. Under her direction, the Florida court-connected dispute resolution program has been widely recognized as being on the cutting edge of issues related to institutionalization. In addition to conducting training and staffing the two supreme court committees on mediation and arbitration, the author is a director on the Board of the Society of Professionals in Dispute Resolution (SPIDR) and teaches a course in mediation at the Florida State University College of Law. Return to text.

[1] The Center was formed with the dual goals of conducting research and education in the field of ADR and promoting the use of mediation and other alternative processes, particularly in the court system—i.e., institutionalization. The Center has been remarkably successful in achieving its institutionalization goal; Florida now boasts one of the most comprehensive court-connected mediation programs in the country. Nevertheless, in our zeal to concentrate on the actual implementation of programs, our research arm has not been as prolific, although the Center's research publications include JAMES J. ALFINI ET AL., FLA. DISP. RESOL. CTR., SUMMARY JURY TRIALS IN FLORIDA: AN EMPIRICAL ASSESSMENT (1989) and KARL D. SCHULTZ, FLA. DISP. RESOL. CTR., FLORIDA'S ALTERNATIVE DISPUTE RESOLUTION DEMONSTRATION PROJECT: AN EMPIRICAL ASSESSMENT (1990). Return to text.

[2] See 1 TASK FORCE ON DISP. RESOL., N.J. SUPREME COURT, 1988 JUDICIAL CONFERENCE DISCUSSION PAPER 6 (1988) (opting for the use of complimentary dispute resolution (CDR) rather than the more traditional ADR). Return to text.

[3] Interestingly, some of mediation's greatest supporters are not in favor of dropping the "alternative" from the description of ADR because they fear that by doing so, the process will become just like more traditional methods of dispute resolution—expensive, time-consuming, and not necessarily just. For purposes of clarity in this Article, I will continue to use "ADR" as shorthand to identify these processes. Return to text.

[4] See AMERICAN BAR ASS'N, REPORTS WITH RECOMMENDATIONS TO THE HOUSE OF DELEGATES, 1993 MIDYEAR MEETING 4 (1993). Return to text.

[5] For a more complete history of the development of Florida's experience in establishing a statewide, court-connected mediation program, see Sharon Press, Building and Maintaining a Statewide Mediation Program: A View from the Field, 81 KY. L.J. 1029 (1993). Return to text.

[6] See JOSEPH B. STULBERG, SUPREME COURT OF FLA., iNSTRUCTOR'S GUIDE FOR TRAINING MEDIATORS FOR SERVICE IN CITIZEN DISPUTE SETTLEMENT PROGRAMS (1981). Return to text.

[7] Statutory authority for CDS programs was pursued as early as 1976. See SARAH SCHULTZ ET AL., FLA. DISP. RESOL. CTR., FLORIDA MEDIATION/ARBITRATION PROGRAMS: A COMPENDIUM 262 (9th ed. 1996). It was finally adopted in 1985. See Act effective June 19, 1985, ch. 85-228, § 2, 1985 Fla. Laws 1237, 1237-39 (codified as amended at FLA. STAT. § 44.201 (Supp. 1996)). Return to text.

[8] The proposed National Institute of Law Enforcement and Criminal Justice Design for Neighborhood Justice Centers have the following objectives: (1) to establish in the community an efficient mechanism for the resolution of minor criminal and civil disputes that stresses mediation and conciliation between the parties in contrast to the findings of fault or guilt that characterize the traditional adjudication process; (2) to reduce court caseloads by redirecting cases that are not appropriate for the adversarial process; (3) to enable the parties involved in the disputes to arrive at fair and lasting solutions; and (4) to serve as a source of information and referral for disputes that would be more appropriately handled by other community services or government agencies. See DANIEL MCGILLIS & JOAN MULLEN, NEIGHBORHOOD JUSTICE CENTERS: AN ANALYSIS OF POTENTIAL MODELS 197 (1977). Return to text.

[9] For example, New York state now has established community dispute resolution centers in all 62 of its counties. See COMMUNITY DISP. RESOL. CTRS. PROGRAM, UNIFIED COURT SYS. OF THE STATE OF N.Y., 1995 FISCAL YEAR ANNUAL REPORT 1 (1996). Return to text.

[10] In 1986, when the first compendium of mediation and arbitration programs was published, there were 15 CDS programs, three small claims programs, and two circuit court civil mediation programs. See BRENDA DUANE & MIKE BRIDENBACK, FLA. DISP. RESOL. CTR., FLORIDA MEDIATION PROGRAMS: A COMPENDIUM 2 (1st ed. 1987). In 1995, there were "14 CDS programs, 26 county mediation programs, 23 family mediation programs, nine circuit civil mediation programs and five arbitration programs." SARAH SCHULTZ ET AL., supra note 7, at v. This graphically demonstrates the growth of mediation overall, as well as the shift from community, pre-suit mediation to a court-filed focus. Return to text.

[11] In 1995, the Dade County community dispute resolution program, which was one of the pioneer programs in Florida, closed due to lack of funding. One of the reasons cited was the caseload, which was low compared with the court-connected mediation programs. A troubling corollary in this regard is being repeated in California, where firmly established community programs are being included in the state's legislative efforts to institutionalize court mediation programs. Return to text.

[12] See Sally Engle Merry, Defining "Success" in the Neighborhood Justice Movement, in NEIGHBORHOOD JUSTICE: ASSESSMENT OF AN EMERGING IDEA 172 (Roman Tomasic & Malcolm M. Feely eds., 1982). Return to text.

[13] In his 1996 public swearing-in, Chief Justice Gerald Kogan of the Florida Supreme Court stated, "The biggest thing that I believe in is access to the courts." Kogan Sets Priorities for Term as Chief Justice, FULL COURT PRESS (Fla. Off. of the State Courts Adm'r, Tallahassee, Fla.), July/Aug. 1996, at 1. Return to text.

[14] The Neighborhood Justice Center was funded partly by an "innovation grant" from the Dispute Resolution Center. This ironic turn of events underscores the cyclical nature of this field in which the forerunner of the comprehensive dispute resolution program in Florida would, twenty years later, be seen as an innovative approach to dispute resolution. Return to text.

[15] See Act effective Jan. 1, 1988, ch. 87-173, §§ 1-6, 1987 Fla. Laws 1202, 1202-05 (codified as amended in scattered sections of FLA. STAT. ch. 44 (1995 & Supp. 1996)). Return to text.

[16] See id. § 2, 1987 Fla. Laws at 1202 (codified as amended at FLA. STAT. § 44.102(2)(a) (Supp. 1996)); see also In re Proposed Rules for Implementation of Florida Statutes Sections 44.301-.306, Rules of Civil Procedure, 518 So. 2d 908, 909 (Fla. 1987). Return to text.

[17] The development of private-sector participation in court-connected mediation programs in Florida is actually very interesting. The original statute adopted in 1987 did not preclude the appointment of a mediator paid for by the parties. This was later codified in 1990, when section 44.102(4)(b), Florida Statutes, was amended to state that "a mediator may be compensated by the county or by the parties." Act effective Oct. 1, 1990, ch. 90-188, § 2, 1990 Fla. Laws 850, 852 (codified at FLA. STAT. § 44.102(5)(b) (Supp. 1996)). As a result, several entrepreneurial lawyers-turned-mediators actively worked with judges to persuade them to use mediation as a court management tool. When the state budget crisis of the early 1990s struck Florida, it became clear that public (state) funding of mediation was not possible and, as a result of these pioneer efforts, probably not necessary (at least for large, nonfamily civil cases). Return to text.

[18] See SCHULTZ ET AL., supra note 7, at v-vii. This number is unrepresentative of the actual number of cases diverted from the courts because statistics are only available for 12 of the 20 judicial circuits in Florida, even though all 20 refer cases to mediation. In addition, the court programs in the 12 circuits that do collect statistics vary in their ability to capture all of the mediated cases in their jurisdictions. Return to text.

[19] The court-ordered arbitration program in Florida has not been as widely received as the mediation program. In 1995, fewer than 60 cases were arbitrated in court-connected programs statewide. See SCHULTZ ET AL., supra note 7, at 129. This is largely due to the success of the mediation program. Attorneys prefer mediation because there is almost no downside. Along with their clients, they still retain decisionmaking control over their cases. If neither an attorney nor her client like a potential agreement, they can end the mediation and request a trial. In court-ordered arbitration, on the other hand, the arbitrator will render a decision, and a party/attorney who does not like the decision and requests a trial runs the risk of sanctions if there is not a better outcome at trial. For their part, judges do not care which alternative is used so long as some alternative is tried. Return to text.

[20] See Bruce A. Blitman, Mediation in Florida: The Newly Emerging Case Law, FLA. B.J., Oct. 1996, at 44. Return to text.

[21] See SCHULTZ ET AL., supra note 7, at 7. Civil cases for less than $15,000 in damages are typically handled at no charge to the parties. In addition, most judicial circuits in Florida have family (divorce) mediators on staff to handle cases at no charge to the parties or on a sliding scale fee basis that depends on the parties' incomes. See id. at 61-62, 68-79. Return to text.

[22] This may be the result of a more sophisticated client base requesting mediation, a perceived ethical duty, see Robert F. Cochran, Jr., Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819, 843 (1990), a recognition that the case will be ordered to mediation in any event, or a true commitment to mediation as an appropriate method of resolution. Return to text.

[23] Over the course of eight years, the Florida Supreme Court has adopted rules of procedure governing the mediation and court-ordered arbitration process, see FLA. R. CIV. P. 1.700-.750; FLA. FAM. L.R.P. 12.740-.741, promulgated a code of ethical conduct and grievance procedures for mediators, see FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.010-.100, and established qualifications for court mediators and arbitrators, see FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.010; FLA. R. CERT. & CT.- APPTD. ARBITRATORS 11.010. Return to text.

[24] See CHRISTOPHER W. MOORE, THE MEDIATION PROCESS 14 (1986) (stressing the consensual nature of the mediation process); ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION 2 (1994) (stressing same). Return to text.

[25] Originally found in Florida Rule of Civil Procedure 1.760, the qualifications were moved in 1992 to Florida Rule for Certified and Court-Appointed Mediators 10.010 when the court adopted the code of conduct and grievance procedure for mediators. See In re Proposed Standards of Professional Conduct for Certified and Court-Appointed Mediators, 604 So. 2d 764, 764-65 (Fla. 1992); see also In re Florida Rules of Civil Procedure, Florida Rules for Certified & Court-Appointed Mediators, and Proposed Florida Rules for Court-Appointed Arbitrators, 641 So. 2d 343, 348 (Fla. 1994) (current version). It is important to note that the qualifications for mediators apply only to those who wish to receive referrals from the state court system. To date, there is no title act in Florida regarding mediators; in fact, there are many different qualifications established for mediators who are involved with different types of mediation such as insurance, worker's compensation, and public policy issues. The other statewide office of dispute resolution, the Florida Conflict Resolution Consortium, maintains a roster of individuals available to serve as mediators in public policy, growth management, and environmental disputes. In addition, in 1990, the Florida Supreme Court amended the Florida Rules of Civil Procedure governing mediation to provide parties ordered to mediation with 10 days from the order of referral to select a mediator. See In re Amendment to Florida Rules of Civil Procedure 1.700-1.780 (Mediation), 563 So. 2d 85, 86 (Fla. 1990). Within that initial time period, the parties are free to select a certified mediator or any other individual upon whom the parties can agree. See id. at 88. Return to text.

[26] The qualifications for certification as a mediator include: (1) mediation training but no additional educational or experiential requirements for county mediators (initially for civil cases under $5000 but now includes cases under $15,000); (2) mediation training and (a) a masters or doctorate degree in a mental health, behavioral, or social science, (b) licensing as a physician in adult or child psychology, or (c) licensing as a CPA or attorney in any U.S. jurisdiction (all with four years of experience in any of the aforementioned fields for family (divorce) mediators); or (3) mediation training and admission to The Florida Bar with five years of Florida legal practice or previous service as a judge from any U.S. jurisdiction for circuit mediators (initially for civil cases above $5000 but now includes cases above $15,000 due to an unrelated jurisdictional change of the courts). See FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.010. Return to text.

[27] See George Nicolau, Ill-Considered Criteria Endanger Mediation, SPIDR President Warns, 2 ALTERNATIVE DISP. RESOL. REP. 244, 245 (1988) (discussing Society of Professionals in Dispute Resolution president's criticism of Florida mediation program). For a response to Nicolau, see Sharon Press, Florida Explains Court Rules in Face of Continuing Controversy, 2 ALTERNATIVE DISP. RESOL. REP. 434, 434-35 (1988). Return to text.

[28] While "paper credentials" are generally considered to be poor indicators of potential success and skill as a mediator, courts must make determinations based upon objective criteria. Subjectively assessing an individual's skills and abilities would place the court in an untenable position. This may ultimately be a reason why courts should not be in the business of "credentialing"; however, in the case of Florida, no one was up to the challenge at the time the program was started. It is my belief that because Florida began a program of mediator certification, the mediation community has taken "credentialing" seriously, and the community has made great strides in the past five years in the area of "credentialing." See, e.g., NATIONAL INST. FOR DISP. RESOL., PERFORMANCE- BASED ASSESSMENT: A METHODOLOGY FOR USE IN SELECTING, TRAINING AND EVALUATING MEDIATORS (1995); SOCIETY OF PROF'LS IN DISP. RESOL., ENSURING COMPETENCE AND QUALITY IN DISPUTE RESOLUTION PRACTICE (1995). The State Justice Institute recently awarded to SPIDR and the National Center for State Courts a grant entitled "Principles and Policies to Guide State Courts in Selection, Training, Qualifications and Evaluation of Neutrals." Return to text.

[29] The initial rules allowed the trial judge to choose the alternative process of dispute resolution to which the parties would be ordered and also to select the mediator. Return to text.

[30] See In re Special Committee on Mediator and Arbitrator Training, Fla. Admin. Order (Apr. 19, 1988) (on file with Clerk, Fla. Sup. Ct.). Return to text.

[31] See In re Special Committee on Mediation and Arbitration Rules, Fla. Admin. Order (July 26, 1989) (on file with Clerk, Fla. Sup. Ct.). Return to text.

[32] In re Standing Committee on Mediation and Arbitration Training, Fla. Admin. Order (Feb. 14, 1996) (on file with Clerk, Fla. Sup. Ct.). Return to text.

[33] See In re Special Committee on Mediation and Arbitration Rules, Fla. Admin. Order (July 26, 1989) (on file with Clerk, Fla. Sup. Ct.). All other court rules are handled through committees of The Florida Bar, which can only submit revisions as part of a four-year review cycle. Return to text.

[34] Id. Return to text.

[35] See FLA. R. CIV. P. 1.720(f). Return to text.

[36] See Act effective Jan. 1, 1990, ch. 89-31, §§ 1-7, 1989 Fla. Laws 48, 48-50; Act effective Oct. 1, 1990, ch. 90-188, §§ 1-11, 1990 Fla. Laws 850, 850-56; Act effective May 5, 1993, ch. 93-161, §§ 2-5, 1993 Fla. Laws 941, 942-43. Return to text.

[37] FLA. STAT. § 44.107 (1995). Return to text.

[38] See Act effective Jan. 1, 1988, ch. 87-173, § 6, 1987 Fla. Laws 1202, 1205 (codified as amended at FLA. STAT. § 44.106 (1995)). Return to text.

[39] See ROBERT A. BARUCH BUSH, NATIONAL INST. FOR DISP. RESOL., THE DILEMMAS OF MEDIATION PRACTICE: A STUDY OF ETHICAL DILEMMAS AND POLICY IMPLICATIONS (1992). Return to text.

[40] Id. at 30. Return to text.

[41] See In re Proposed Standards of Professional Conduct for Certified and Court-Appointed Mediators, 604 So. 2d 764, 764-65 (Fla. 1992). Return to text.

[42] See FLA. STAT. § 44.102(3) (Supp. 1996). Return to text.

[43] See In re Amendments to the Florida Rules for Certified & Court-Appointed Mediators, 661 So. 2d 807 (Fla. 1995). Return to text.

[44] See FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.220. Return to text.

[45] See FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.060. Return to text.

[46] See FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.070. Return to text.

[47] See FLA. R. CERT. & CT.- APPTD. MEDIATORS 10.090. Return to text.

[48] The Resolution Report is a publication of the Florida Dispute Resolution Center. Return to text.

[49] In 1994, the court amended the Florida Rules for Certified and Court-Appointed Mediators to create the Mediator Qualifications Advisory Panel, which provides advisory ethics opinions to mediators who have questions about the standards of conduct. See In re Florida Rules of Civil Procedure, Florida Rules for Certified & Court-Appointed Mediators, and Proposed Florida Rules for Court-Appointed Arbitrators, 641 So. 2d 343, 351 (Fla. 1994). Return to text.

[50] See FLA. STAT. § 44.106 (1987). Return to text.

[51] See In re Rules Governing Qualifications for Mediators, Fla. Admin. Order (July 7, 1989) (on file with Clerk, Fla. Sup. Ct.). Return to text.

[52] See id. Return to text.

[53] See Internal Dispute Resolution Center Memorandum on Training Standards 3 (on file with author). Return to text.

[54] See Margaret Shaw, Selection, Training, and Qualifications of Neutrals, in NATIONAL SYMPOSIUM ON COURT-CONNECTED DISPUTE RESOLUTION RESEARCH 155 (Susan Keilitz ed., 1994). Return to text.

[55] See In re Mediation Training Standards and Procedures, Fla. Admin. Order (Dec. 1, 1995) (on file with Clerk, Fla. Sup. Ct.). Return to text.

[56] The training program standards also contain a procedure by which complaints can be lodged against training programs that will be reviewed by a 16-member Mediation Training Review Board. Return to text.

[57] To retain certification as a mediator in Virginia, an individual must complete continuing mediator education as well as practice requirements. See OFFICE OF THE EXECUTIVE SECRETARY, SUPREME COURT OF VA., GUIDELINES FOR THE TRAINING AND CERTIFICATION OF COURT-REFERRED MEDIATORS 5 (1995). Return to text.