Florida Senate - 2014 SB 1190
By Senator Lee
24-00252B-14 20141190__
1
2 A bill to be entitled
3 An act relating to family law; creating part III of
4 ch. 61, F.S., entitled the “Collaborative Process
5 Act”; creating s. 61.51, F.S.; declaring the purpose
6 of the act; creating s. 61.52, F.S.; defining terms;
7 creating s. 61.53, F.S.; declaring that a
8 collaborative process commences when the parties enter
9 into a collaborative participation agreement; creating
10 s. 61.54, F.S.; stating that the execution of a
11 collaborative participation agreement tolls all legal
12 time periods applicable under law between the parties
13 for the amount of time the agreement remains in
14 effect; creating s. 61.55, F.S.; stating that all
15 collaborative communications are confidential;
16 providing exceptions; creating s. 61.56, F.S.;
17 providing sanctions; creating s. 61.57, F.S.;
18 disqualifying an attorney from further representing a
19 party if the collaborative process terminates without
20 an agreement; providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Part III of chapter 61, Florida Statutes,
25 consisting of ss. 61.51-61.57, Florida Statutes, is created and
26 entitled the “Collaborative Process Act.”
27 Section 2. Section 61.51, Florida Statutes, is created to
28 read:
29 61.51 Purpose.—The general purpose of this part is to
30 create a uniform system of practice of the collaborative process
31 in this state. It is the policy of this state to encourage the
32 peaceful resolution of disputes and the early settlement of
33 pending litigation through voluntary settlement procedures. The
34 collaborative process is a unique nonadversarial method that
35 preserves a working relationship between the parties and reduces
36 the emotional and financial toll of litigation.
37 Section 3. Section 61.52, Florida Statutes, is created to
38 read:
39 61.52 Definitions.—As used in this part, the term:
40 (1) “Collaborative attorney” means an attorney licensed to
41 practice law in this state by the Florida Supreme Court who
42 satisfies any training and other requirements mandated by the
43 Florida Supreme Court which enable the attorney to represent
44 clients in the collaborative process.
45 (2) “Collaborative communication” means any oral or written
46 statement or any nonverbal act that is made following the
47 execution by the parties of a collaborative participation
48 agreement for the purpose of conducting, participating in,
49 continuing, or otherwise furthering the collaborative process,
50 until the time the collaborative process terminates or a final
51 agreement is reached.
52 (3) “Collaborative participant” means a party,
53 collaborative attorney, or nonparty participant in the
54 collaborative process.
55 (4) “Collaborative participation agreement” means a written
56 contract entered into pursuant to this act and the requirements
57 adopted by the Florida Supreme Court pertaining to the
58 collaborative process.
59 (5) “Collaborative process” means a process in which
60 parties, represented by collaborative attorneys, attempt to
61 resolve a matter pursuant to a collaborative participation
62 agreement without court intervention.
63 (6) “Court” means a tribunal of competent jurisdiction
64 acting in an adjudicative capacity in which a judicial officer,
65 after presentation of evidence, testimony, and legal argument,
66 renders a binding decision affecting a party’s interests in a
67 matter.
68 (7) “Matter” means a dispute, transaction, claim, problem,
69 or issue for resolution described in a collaborative
70 participation agreement.
71 (8) “Nonparty participant” means a person, other than a
72 party or collaborative attorney, who is retained by or serves as
73 an advisor to a party in the collaborative process.
74 (9) “Party” means a person who enters into a collaborative
75 participation agreement and whose consent is necessary to
76 resolve the matter disputed in the agreement.
77 (10) “Proceeding” means a judicial, administrative, or
78 other adjudicative process before a tribunal, including related
79 prehearing and post-hearing motions, conferences, and discovery.
80 Section 4. Section 61.53, Florida Statutes, is created to
81 read:
82 61.53 Commencement of collaborative process.—The
83 collaborative process commences, whether or not a proceeding is
84 pending, when the parties enter into a collaborative
85 participation agreement.
86 Section 5. Section 61.54, Florida Statutes, is created to
87 read:
88 61.54 Tolling of statutes of limitations.—The execution of
89 a collaborative participation agreement tolls all legal time
90 periods applicable to legal rights and issues under law between
91 the parties for the amount of time the collaborative
92 participation agreement remains in effect. This section applies
93 to all applicable statutes of limitations, filing deadlines, and
94 other time limitations imposed by law.
95 Section 6. Section 61.55, Florida Statutes, is created to
96 read:
97 61.55 Confidentiality; privilege; exceptions.—
98 (1) Except as provided in this section and unless the
99 parties agree otherwise in writing, all collaborative
100 communications are confidential. A collaborative participant may
101 not disclose a collaborative communication to a person other
102 than another collaborative participant. A violation of this
103 section during the collaborative process may be sanctioned as
104 agreed to by the parties, or a party may terminate the
105 collaborative process. A violation of this section after the
106 collaborative process terminates may be sanctioned as provided
107 in s. 61.56.
108 (2) A party has a privilege to refuse to testify and to
109 prevent any other person from testifying in a subsequent
110 proceeding regarding collaborative communications.
111 (3)(a) Notwithstanding subsections (1) and (2),
112 confidentiality or privilege does not attach to a signed written
113 agreement reached during a collaborative process unless the
114 parties agree otherwise, in writing, or to any collaborative
115 communication that:
116 1. Is willfully used to plan a crime, commit or attempt to
117 commit a crime, conceal ongoing criminal activity, or threaten
118 violence;
119 2. Requires a mandatory report pursuant to chapter 39 or
120 chapter 415 solely for the purpose of making the mandatory
121 report to the entity requiring the report;
122 3. Is offered to report, prove, or disprove professional
123 malpractice or misconduct occurring during the collaborative
124 process, solely for the purpose of the professional malpractice,
125 misconduct, or ethics proceeding; or
126 4. Is offered for the limited purpose of establishing or
127 refuting enforceability of an agreement reached during the
128 collaborative process.
129 (b) A collaborative communication that is disclosed under
130 subparagraph (a)2., subparagraph (a)3., or subparagraph (a)4.
131 remains confidential and is not discoverable or admissible for
132 any other purpose unless otherwise authorized by this section.
133 (4) Information that is otherwise admissible or subject to
134 discovery does not become inadmissible or protected from
135 discovery by reason of its disclosure or use in a collaborative
136 process.
137 (5) A party that discloses or makes a representation about
138 a privileged collaborative communication waives that privilege,
139 but only to the extent necessary for the other party to respond
140 to the disclosure or representation.
141 Section 7. Section 61.56, Florida Statutes, is created to
142 read:
143 61.56 Confidentiality; sanctions.—
144 (1) After the collaborative process terminates, a
145 collaborative participant that knowingly and willfully discloses
146 a collaborative communication in violation of s. 61.55 is
147 subject to all of the following:
148 (a) Equitable relief.
149 (b) Compensatory damages.
150 (c) Attorney fees and costs incurred during the
151 collaborative process.
152 (d) Reasonable attorney fees and costs incurred by the
153 application for remedies under this section.
154 (2) Notwithstanding any other law, an application for
155 relief filed under this section may not be commenced later than
156 2 years after the date on which the party has a reasonable
157 opportunity to discover the breach of confidentiality, but in no
158 case more than 4 years after the date of the breach.
159 (3) A collaborative participant is not subject to a civil
160 action under this section for lawful compliance with s. 119.07.
161 Section 8. Section 61.57, Florida Statutes, is created to
162 read:
163 61.57 Disqualification.—If the collaborative process
164 terminates without an agreement, the collaborative attorneys are
165 disqualified from further representing the collaborative
166 participants in the dissolution of marriage that is the subject
167 of the collaborative process.
168 Section 9. This act shall take effect July 1, 2014.