69J-176.022. Mediation of Bodily Injury and Property Damage Claims

(1) Scope of rule. This rule implements section 627.745, F.S., and applies to any claim filed with an insurer for bodily injury in an amount of $10,000 or less or any claim for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle when a party demands mediation before a lawsuit has been filed.

(2) Definitions. The following definitions shall apply for purposes of this rule:

(a) “Complainant” refers to the party requesting mediation of a claim.

(b) “Complete request for mediation” means that the complainant has requested mediation by filing Form DFS-I0-510, “Automobile Mediation Request Form,” rev. 8/15, with the Department and the respondent and complainant have paid their share of the costs of mediation pursuant to paragraph (3)(b), below.

(c) “Department” means the Department of Financial Services or its designee.

(d) “Respondent” means the party not initiating the request for mediation.

(e) “Service office” means a designated office of the Department of Financial Services.

(3) Request for Mediation.

(a) A complainant requesting mediation shall file with the Department a request for mediation on Form DFS-I0-510, “Automobile Mediation Request Form,” rev. 8/15, http://www.flrules.org/Gateway/reference.asp?No=Ref-06891, which is hereby adopted herein and incorporated by reference. This Form may be obtained online at the following website: http://www.myfloridacfo.com/Division/Consumers/Mediation/documents/am_DFS-I0-510.pdf and filed with the Department by emailing it to [e-mail], faxing it to [phone], submitting it online at the following website: https://apps.fldfs.com/ESERVICE/MediationInfo.aspx or mailing it to the Alternative Dispute Resolution Section, Division of Consumer Services, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0300. A request for mediation shall be considered complete only when all costs of mediation are received by the Department. The Department shall notify the complainant in writing within 5 business days of receipt of payment by the respondent.

(b) The costs of mediation shall be $200, and the insured and the insurer shall each pay $100 to the Department as its share of the costs of mediation.

(c) Upon receipt of a request for mediation, the Department shall issue an invoice to the respondent, specifying the respondent’s share in the costs of mediation. The respondent shall make payment on or before the due date which shall be indicated on the invoice, unless the provisions of paragraph (4)(e) are met. The due date shall be 21 days after the date of the invoice.

(d) All payments by the parties shall be made by certified check, money order, or insurance company check or draft made payable to the Department of Financial Services.

(e) If a respondent objects to the mediation conference and refuses to participate, the respondent must, on or before the due date of the invoice, notify the Department in writing of its objection and refusal and specifically state the reasons therefor. These reasons shall be deemed confidential and exempt from the provisions of subsection 119.07(1), F.S., and shall not be publicly disclosed without the written consent of all parties to the dispute. Any research or evaluation effort directed at assessing program activities or performance shall protect the confidentiality of such information.

(4) Mediators.

(a) Mediator Selection. Upon receiving a complete request for mediation, the Department shall randomly select from the Department’s list a mediator to conduct the mediation conference. The Department shall notify the parties of the selected mediator via e-mail. Each party may once reject the selected mediator by notifying the Department. Any rejection of a mediator must be in writing and mailed to the Alternative Dispute Resolution Section, Division of Consumer Services, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-4212 or emailed to [e-mail] and received by the Department within three (3) business days of the date of the written notice of the mediator selection. If a mediator has not been rejected within three (3) business days of the date of the written notice of the mediator selection, the Department shall notify the mediator of his or her selection via e-mail. The mediator shall log into the Department’s Alternative Dispute Resolution Management System at https://apps.fldfs.com/mediationmanager/Login.aspx to view the names and addresses of the parties and their known representatives, their phone numbers (if known), the Department’s file number, the date of the request for mediation, and information that the mediation is to occur within twenty-one (21) days of the date of assignment to the mediator. The mediator will have three (3) business days from the date of notification by the Department to accept or reject the selection. The acceptance or rejection of the selection by a mediator must be completed through the Department’s Alternative Dispute Resolution Management System at https://apps.fldfs.com/mediationmanager/Login.aspx within three (3) business days of the date of the written notice of the mediator selection. If the mediator rejects the selection or fails to accept the selection within three (3) business days, then the Department shall randomly select another mediator. A mediator may refuse to conduct a particular mediation.

(b) Grouping of Assignments. Multiple requests for mediation involving the same claim will, if feasible, be grouped together and assigned to a single mediator. A mediator will be assigned a maximum of four mediation conferences under a single assignment.

(c) Procedure and Conduct. All mediation conferences shall be conducted in accordance with this rule and Rules 10.200 through 10.690, Part II, Standards of Professional Conduct, of the Florida Rules for Certified and Court-Appointed Mediators, (Effective 10/1/14), http://www.flrules.org/Gateway/reference.asp?No=Ref-06901, which are hereby incorporated by reference and available at http://www.flcourts.org/core/fileparse.php/422/urlt/RulesBookletOctober2014.pdf. Mediators shall have the same responsibilities to the Department as they have to the courts under the Florida Rules for Certified and Court-Appointed Mediators. The Florida Rules for Certified and Court-Appointed Mediators shall be read in a manner consistent with this rule and any conflict between this rule and the Florida Rules for Certified and Court-Appointed Mediators shall be resolved in favor of this rule. The mediator may meet with the parties separately, encourage meaningful communications and negotiations, and otherwise assist the parties to arrive at a settlement.

(d) Complaints; Discipline. Complaints concerning a mediator shall be written and e-mailed to [e-mail] or mailed to the Alternative Dispute Resolution Section, Division of Consumer Services, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0300. The Alternative Dispute Resolution Section shall review all alleged instances of dishonest, incompetent, fraudulent, or unethical behavior on the part of a mediator and all instances in which the mediator allegedly failed to promptly and completely respond to proper requests from the Department and all instances in which the actions or failure to act on the part of the mediator violate this rule or standards set forth in this rule or are counter to the intent and purpose of this mediation program or this rule or section 627.745, F.S. In such instances, the Department shall institute proceedings in accordance with chapter 120, F.S., to revoke the appointment of any mediator whom the Department finds has acted in a manner which shows that individual to be unsuited to be a mediator in this program.

(5) Mediation Conference.

(a) Location. The mediation conference shall be held at a reasonable location specified by the mediator within the insured’s county of residence, unless all parties agree otherwise. In times of declared disaster, the Department shall assign the mediation location and notify the mediator of same, if the Department determines such action is necessary to facilitate and expedite the mediation process. The Department shall make available various conference locations throughout the state for possible use, if the Department determines such action is necessary to facilitate and expedite the mediation process. Before scheduling a mediation conference, the mediator may contact the Alternative Dispute Resolution Section to determine the availability of office facilities to accommodate the mediation conference. If the parties determine that the assigned conference location is inconvenient or impractical, the parties and mediator may agree to conduct the mediation conference at an alternative location. If the Department has assigned a location, the Department must also agree to the alternate location. The mediator will notify the parties and the Department of the exact time, date, and location of the conference.

(b) Telephonic Mediation. Upon written consent of all parties, the mediation conference may be held by telephone if an in-person meeting of the parties and the mediator is inconvenient. The mediator shall notify the Department in writing of the telephone mediation.

(c) Timing and Continuances. The mediation conference shall be held within 45 days after receipt by the Department of a complete request for mediation. Upon application by any party to the mediator for a continuance, the mediator shall, for good cause shown or if neither party objects, grant a continuance and shall notify all parties of the date and place of the rescheduled conference. If the applicant demonstrates to the mediator, on Form DFS-I0-510, “Automobile Mediation Request Form,” rev. 8/15, the need for an expedited mediation conference due to an undue hardship, the conference shall be conducted at the earliest date convenient to all of the parties and the mediator.

(d) Attendance. The insured and the insurer shall attend the mediation conference, have full knowledge of the facts of the dispute, and be fully authorized to make an agreement to completely resolve the claim. All corporate parties who are complainants or respondents shall be represented at the conference by a corporate representative who has full knowledge of the facts of the dispute and is fully authorized to make an agreement to completely resolve the dispute. An insurer will be deemed to have failed to appear if the insurer’s representative lacks authority to make an agreement to completely resolve the claim.

(e) Good Faith Negotiation. All parties shall negotiate in good faith. By participating in the mediation process under these rules, the participants agree to negotiate in good faith to attempt to resolve the claim and agree to remain in the mediation conference until the claim is resolved or until the mediator declares an impasse. There is no requirement that the claim must be resolved in mediation.

(6) Disbursement of Funds. The funds paid by the parties shall be disbursed as follows:

(a) Completed Mediation Conference. If the mediation conference is held, 90% of the costs of mediation shall be disbursed to the mediator. The remaining 10% of the costs of mediation shall be deposited in the Insurance Regulatory Trust Fund.

(b) Cancellation. If a mediation conference is cancelled by a party for reason of settlement or for any other reason, the parties shall notify the mediator and the Department upon cancellation. If the mediation conference is not held due to cancellation, 70% of the individual party’s paid costs of mediation shall be returned to the paid parties. Ten percent of the costs of mediation shall be deposited in the Insurance Regulatory Trust Fund. The mediator shall receive 20% of the costs of mediation.

(c) Cancellation Due To Absence. If a mediation conference is cancelled due to failure of a party to attend a conference, then the attending party shall be returned his paid share of the costs of mediation. The absent party will be refunded nothing. The mediator shall receive 80% of the remaining costs of mediation, and the remaining 20% of the costs of mediation shall be deposited in the Insurance Regulatory Trust Fund. Failure of a party to arrive at the mediation conference within 30 minutes of the conference’s starting time shall be considered an absence.

(d) Rescheduling a Cancelled Mediation Conference. If a party wishes to mediate a claim after cancellation, the party must complete and file an original application with the Department as set forth above.

(e) Any disputes regarding the amount of disbursement of funds shall be resolved by the Department.

(f) Any expenses associated with the mediation conference, such as travel, telephone, postage, meals, lodging, facilities, and other related expenses, shall be borne by the party, mediator or other person incurring the expense.

(g) The Department reserves the right to reduce fees based on consumer surveys and cost analysis.

(7) Post-Mediation.

(a) Disposition. Mediators shall report to the Department on the status of property insurance mediation conferences by submitting Form DFS-I4-2169, “Mediation Disposition Form,” rev. 2/16, http://www.flrules.org/Gateway/reference.asp?No=Ref-06892, which is hereby incorporated by reference. A copy of the form can be obtained at the following website: www.myfloridacfo.com/Division/Consumers/Mediation/CommercialResidentialMediation.htm. If the claim is settled prior to the mediation conference being held, the insurer shall report the outcome of the issue to the mediator prior to the scheduled hearing and the mediator will submit the Mediation Disposition Form confirming the settlement. A mediation conference will not be considered complete and the Administrator will not bill the insurer until this form is submitted.

(b) Any demand for refund by a party to a mediation conference shall be filed in writing with the Department within 10 days of the last mediation conference at issue.

Rulemaking Authority 624.308(1), 627.745(4), (5) FS. Law Implemented 624.307(1), 627.745 FS. History–New 3-14-93, Amended 8-6-98, 9-17-01, Formerly 4-176.022, 69B-176.022, Amended 6-7-16.