THE RESOLUTION REPORT ONLINE

•   This hearing arose out of a “good moral character” [rule 10.110] review by the qualifications complaint committee of the MQB.  On the applicant’s initial application for certification he answered “yes” to the questions “have you ever been convicted of a felony or first degree misdemeanor” and “have you were pled nolo contendere to a crime which is a felony or first degree misdemeanor or had adjudication of guilt withheld by the courts.” Specifically, he reported a 1992 nolo contendere plea for a forgery and grand theft felony “involving a fiduciary conflict with a family member.”

  The QCC found facial sufficiency and requested additional information from the applicant which the applicant provided.  The crime involved the forgery of the applicant’s aunt’s signature with which he directed the purchase of stock which was under the applicant’s control.  The stock immediately lost value.  The money was not repaid until criminal charges were initiated.  The applicant had since made full restitution, completed probation, and had his civil rights restored.  The QCC referred the matter to a hearing panel for further action.  At the conclusion of the hearing, the panel entered the following order:  “Based on the preponderance of the evidence, in a 3 to 2 vote, the Hearing Panel dismissed the formal charges filed on December 17, 2003. 

•   This grievance was filed by a party in a circuit court mediation against a circuit mediator.  The complainant alleged that the mediator violated rule 10.420(b)(5), Conduct of Mediation, by failing to terminate the mediation even though the complainant’s mother (also a party) “was so upset at mediation she threatened to kill herself in front of everyone.”  The complainant also alleged that the mediator required the complainant’s mother to attend the mediation even though the complainant had a durable power of attorney and did not allow the complainant to reschedule or leave the mediation.  She also alleged that the mediator told the complainant in caucus, “if this case went to trial, [she] would likely be found guilty,” in violation of rule 10.370(c), Advice, Opinions, or Information.      

  The complaint committee found facial sufficiency with regards to rules 10.310, Self-Determination; 10.370(b) and (c), Advice, Opinions, or Information; 10.420(b)(3), Conduct of Mediation, and 10.520, Compliance with Authority, and requested a response from the mediator.  After reviewing the mediator’s response, the complaint committee authorized the hiring of an investigator to interview the mediator, the complainant and her mother, the opposing parties in the underlying case, the attorney for the opposing parties, mediation program personnel who were knowledgeable about the scheduling issues raised in the complaint and response, and anyone else deemed necessary to complete the investigation.  After reviewing the investigator’s report, the complaint committee continued to have concerns with regards to rules 10.370(c) and 10.420(b)(3) and requested a meeting with the mediator and the complainant.  The complaint committee met with the complainant and the mediator (separately) via conference calls.  Thereafter, the complaint committee found that there was probable cause to believe that the mediator violated rules 10.370(c), by offering a legal opinion on the sufficiency of the durable power of attorney document which the complainant provided at mediation, and rule 10.420(b)(3), by failing to adjourn or terminate the mediation when one of the parties was unable to participate meaningfully in the process.  The committee offered, and the mediator accepted the following sanctions: sending a letter of apology to the complainant acknowledging errors in conducting the mediation in the underlying case, in addition to refunding the fees collected and forgiving any mediation fees remaining unpaid for the mediation. 

•  This grievance was filed by a party to the mediation against a certified county mediator conducting a homeowners’ mediation as part of a Department of Business and Professional Regulation’s program.  The complainant alleged that the mediator violated rules 10.200, Scope and Purpose; 10.300, Mediator’s Responsibility to the Parties; 10.310(b) and (d), Self-Determination; 10.380(b)(1) and (b)(2), Fees and Expenses; and 10.430, Scheduling Mediation, by refusing to cancel a mediation which the mediator scheduled when the complainant’s attorney was not available and by not withdrawing from the mediation after the complainant’s attorney requested that the mediator do so.  The complainant alleged that the mediation was conducted in the absence of the complainant and his attorney and an invoice was sent by the mediator.

  The complaint committee reviewed the complaint and found it to be facially sufficient and requested that the mediator respond to the following possible rule violations: rules 10.300; 10.310(d); 10.330(a), Impartiality; 10.380(b)(1) and (b)(2); and 10.430.  The mediator responded that the date for the mediation had been set after the mediator received notification from the opposing parties in the underlying case that they had selected a date for mediation after they had received no response from the complainant’s attorney and after the mediator had also tried to contact the complainant’s attorney with no response.  The mediator further responded that he went forward with the mediation to avoid a “non-appearance” by the mediator.  After reviewing the mediator’s response, the complaint committee chair conducted a further investigation by talking to the complainant’s attorney.  After conducting the investigation, the complaint committee found probable cause to believe that the mediator violated rule 10.310(d) and 10.430 by failing to cancel or postpone the mediation despite receiving notification in advance of the scheduled mediation that counsel for the plaintiffs were unable to attend.  The committee dismissed the complaint pursuant to 10.810(m) because “while the mediator violated the above referenced rules, the mediator believed that the defendants had made numerous attempts to contact plaintiffs’ counsel and had been ignored” and “given that another mediator was appointed and successfully mediated the case, there did not appear to be any prejudice to either party.” 

•  This grievance was filed by a party in a family mediation against a certified family mediator.  The complainant alleged that the mediator was sympathetic to the complainant’s husband “rather than being unbiased” in violation of rule 10.640, Skill and Experience.  The complainant also alleged that the mediator responded to the complainant’s request for alimony by stating that the complainant “can go out and start working” and that the mediator got angry with the parties and told them to “get out of [the mediator’s] office.” 

  The complaint committee found facial sufficiency and requested that the mediator respond to rules 10.310, Self-Determination; 10.330(a) and (b), Impartiality; 10.370(a), (b), and (c), Advice, Opinions, or Information; 10.410, Balanced Process and 10.420, Conduct of Mediation.  The mediator denied all of the allegations stating that she “would never speak to mediation participants in a manner that [the complainant] alleges…”  After reviewing the response, the complaint committee hired an investigator to interview the mediator, the complainant, and the other party.  Based on the investigator’s report, including the statements made by the mediator and the complainant’s husband, the complaint committee continued to have concerns that the mediator’s behavior did not comport with the ethical requirements of rules 10.330, 10.370 and 10.420.  Prior to making a finding of probable cause and drafting formal charges, the complaint committee extended an opportunity for the mediator to accept sanctions.  Mayra Rivero accepted the following sanctions:

  Observation of three pro se family mediations conducted by one or more approved mediators and completion of one mediation under the supervision of an approved mediator.  Each mediation had to be followed by a debriefing session with the mediator.  At the conclusion of the required mediations, the mediator would submit a reflective statement on the experience.    

•  This grievance was filed by a party in a county mediation against a county mediator. The complainant alleged that he made requests “under the ADA and Florida Constitution” for special accommodations and the mediator “refused to grant” the complainant his specific requests.  The complainant also alleged that he asked to go to court administration and then was “forced” to go with an armed security officer.  The complaint alleged violations of rule 10.300, Mediator’s Responsibility to the Parties; 10.310, Self-Determination; 10.330, Impartiality; 10.410, Balanced Process; 10.420(b)(3), Conduct of Mediation; 10.430, Scheduling Mediation; 10.520, Compliance with Authority; and 10.620, Integrity and Impartiality.

  The complaint committee found facial sufficiency and requested a response from the mediator in relation to rules 10.300, 10.410, 10420(b)(3), and 10.520.  The mediator responded that the accommodations requested by the complainant were not acceptable to the other party and thus, he deemed it necessary to terminate the mediation.  Based on the mediator’s response, the complaint was dismissed for lacking of probable cause.

•  This grievance was filed against a certified county mediator about actions taken outside the context of a mediation.  Specifically, the complainant alleged that the mediator misused his certification by the Florida Supreme Court as a mediator in order to “intimidate, influence and otherwise scare individuals and banking establishments” regarding disbursements of the complainant and mediator’s late mother in violation of rules 10.520 [Compliance with Authority]; 10.610 [Advertising], 10.620 (Integrity and Impartiality], 10.800 [Good Moral Character]. 

  The complaint committee reviewed the grievance and dismissed the complaint as facially insufficient because, even if true, there did not appear to be any violations of the Florida Rules for Certified and Court-Appointed Mediators. 

• This grievance was filed by a party in a family mediation against a non-certified mediator.  The complainant alleged violations of rules 10.210, Mediation Defined; 10.220, Mediator’s Role; 10.300, Mediator’s Responsibility; 10.310, Self-Determination; 10.330, Impartiality; 10.350, Demeanor; and 10.370, Advice, Opinions or Information stating that the mediator “threw” an “ideal” visitation schedule in front of the complainant; that the complainant identified issues of “lewd exhibition” at the father’s residence which the mediator ignored as irrelevant; the mediator made comments about the complainant’s husband’s higher education and therefore his enhanced credibility; the mediator asked very personal and inappropriate questions of the complainant; the complainant was not advised of the risk of proceeding without independent counsel and if she had been, she would not have signed the agreement; the complainant told the mediator on several occasions that she wanted to end the mediation; the mediator received and accepted a personal and lengthy phone call; the mediator raised his voice and expressed “irritation and agitation” toward the complainant; and at the conclusion of the mediation, insisted that the complainant apologize to her ex-husband. 

  The complaint committee found facial sufficiency and requested that the mediator respond to rules 10.310(a), (b) and (d), Self-Determination; 10.330(a) and (b), Impartiality; and 10.370(c), Advice, Opinions or Information.  In the mediator’s response he stated that he recalled that the parties were very angry with each other, but had no recollection of the complainant asking to end the mediation or revealing anything regarding lewd exhibition at her ex-husband’s. The mediator also denied “throwing anything in front of the complainant,” saying than any schedule was “ideal,” or telling the complainant at any time what a judge would do.  The mediator acknowledged that he often asks questions to assist in “reality testing” and perhaps some were misunderstood by the complainant and that “at the conclusion of the mediation after an agreement was signed, [the mediator] asked the parties to begin anew their parenting relationship and start over by both parties extending an apology to the other parent for their part in the conflicted relationships they now have.”  After reviewing the response, the complainant continued to have concerns regarding all the rules raised at the facial sufficiency stage and directed the DRC to hire an investigator to interview the mediator, the complainant, the complainant’s ex-husband and his attorney, as well as anyone else deemed necessary to complete the investigation.  As a result of the investigation, the complaint committee dismissed the complaint with a finding of no probable cause.

• This grievance was filed by a party in a small claims county court mediation against a certified county mediator.  The complainant alleged that after hearing the introduction from the judge, the complaint was called by the mediator to a private room.  The complainant also alleged that the mediator never introduced herself, nor did she “explain the mediation process.”  The other party, in this debt collection case appeared by telephone.  According to the complainant, the mediation consisted of the mediator asking the complainant “how much [she] was going to settle for” and then abruptly ending the mediation, and informing the parties that the case would go before the judge. The complainant alleged that the mediator violated rules 10.330 [Impartiality]; 10.350 [Demeanor]; and 10.410 [Balanced Process].   

  The complaint committee found facial sufficiency with regards to rules 10.330, Impartiality; 10.350, Demeanor; 10.410, Balanced Process; and added 10.420(a) Orientation Session, since it appeared from the complaint that the mediator failed to deliver an opening statement.  The mediator responded that for telephonic debt collection cases, the program typically allows the mediator to deliver a group opening statement to the defendants and then call each party individually into the mediation room.  In this case, the mediator had conducted approximately 20 telephonic cases prior to the complainant’s.  The mediator acknowledged that the complainant did not hear the group opening statement because her case was not on the mediator’s initial list of cases.  The mediator denied acting rudely to anyone.  While the mediator did not remember the specifics of this case, she denied having violated any of the ethical rules. The complaint committee opted to meet with the mediator and the complainant in any effort to resolve the issues.  The complainant’s mother, who had also attended the mediation, participated in this conference call meeting as well.  After the meeting, the complaint committee continued to have concerns with all of the rules previously raised. Given the different perceptions of what happened in the mediation, the complaint committee decided to conduct an investigation on their own by one member contacting the attorney who represented the plaintiff in the underlying case.  After talking with the attorney, and based on the discussions at the meeting, the complaint committee found probable cause that the mediator violated rule 10.420(a), by failing to deliver an opening statement.  Based on that violation, and prior to finding probable cause on rule 10.330, 10.350, and 10.410, the complaint committee offered and the mediator, Wendy Butcher, accepted the following sanctions:

  Completion of an additional 4 hour of continuing mediator education in ethics (over and above the 16 CME hours required) and to send a letter of apology to the complainant.     

• This grievance was filed against a certified family mediator about actions taken while serving as a parent coordinator pursuant to court order.  The complainant alleged that, while serving as parent coordinator, the certified mediator mediated between the complainant and her daughter and in the process violated rules 10.410 [Balanced Process]; 10.420 [Conduct of Mediation]; and 10.520, [Compliance with Authority].   The complaint committee also considered rules 10.340 [Conflicts of Interest]; 10.620 [Integrity and Impartiality] and 10.650 [Concurrent Standards]

  The complaint committee reviewed the grievance and dismissed the complaint as facially insufficient because, even if true, there did not appear to be any violations of the Florida Rules for Certified and Court-Appointed Mediators.

• This grievance was filed by a party in a circuit mediation against a certified circuit mediator. The complainant alleged violations of rule 10.330 (Impartiality) by expressing amazement that the complainant found an attorney to represent her and by allegedly telling the defendant in the underlying case that the complainant was going to lose; rule 10.340 (Conflicts of Interest) because opposing counsel selected him as the mediator; rule 10.370 (Advice, Opinions, or Information) by telling both parties that if this was a horse race and he was placing a bet, he would bet on the defendant and that in this case there will be one complete winner and one loser (pointing at the complainant while saying loser). The complainant also alleged that the mediator spent a full hour explaining the mediation process and stated that since so many cases resolve in mediation, if the case did not resolve, it would reflect poorly on the parties. Finally, the complainant alleged that since judges are too busy to review their cases, the mediator would be sending an opinion to the judge as to the worthiness of the case.

  The complaint committee found facial sufficiency and requested that the mediator respond to rules 10.310(a) and (b), Self-Determination; 10.330(a) and (b), Impartiality; and 10.370(c), Advice, Opinions or Information; 10.520, Compliance with Authority as it relates to rule 1.730(a), Florida Rules of Civil Procedure. In the mediator’s response he stated that he was sure that he had made comments relating to winners and losers in lawsuits in the context of stressing that mediation provides opportunity for no winners or losers and also to the uncertainty of horse races. The mediator also pointed out to the parties that in this case, the judge referred it to mediation after the plaintiff had rested her case at trial and this was likely a message from the court. The mediator believed that he had been selected by both attorneys. The mediator also acknowledged asking a variety of “reality-testing” questions on the subjects referenced, but denied telling the complainant any of the statements she alleged he made. The mediator also denied saying that he would tell the judge anything about who was correct. After reviewing the response, the complaint committee continued to have concerns regarding all the rules raised at the facial sufficiency stage and directed the DRC to hire an investigator to interview the mediator, the complainant, the complainant’s former attorney, the defendant and his attorney, as well as anyone else deemed necessary to complete the investigation. After the investigation, the complaint committee continued to have some questions and decided to meet with the mediator and the complainant in an effort to resolve the complaint. Despite numerous attempts to reach the complainant, the DRC was unable to locate her and as a result, the complaint committee dismissed the complaint without prejudice.

The following MQB summaries are from past decisions that have missed publication. The summaries reflect the rules in effect at the time of the decisions.

• This grievance was filed by a party against a county mediator in a county case. The complainant alleged that the mediator violated rules 10.060(b) [self-determination]; 10.070(a), (a)(1), and (a)(2) [impartiality] and 10.090(a), (b) and (d) [professional advice] by not having the defendant present any evidence and by telling the complainant that the complainant had no case.

  The complaint committee hired an investigator. Based on the investigation, the complaint committee dismissed the grievance finding no probable cause.

      
•   This grievance was filed by a party against a county mediator in a county case. The complainant in this grievance alleged that the mediator of this county court case violated rules 10.060(a) and (b) [self-determination]; 10.070(a), (a)(1), and (a)(2) [impartiality] and 10.090(a)and (b) [professional advice] by being rude and biased and coercing the complainant. 

  The complaint committee hired an investigator. Based on the investigation, the complaint committee dismissed the grievance, finding no probable cause.