The Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) has been issuing formal advisory ethics opinions to certified and court-appointed mediators since 1994. MEAC opinions deal with mediation-related ethics questions governed primarily by Florida’s Rules for Certified and Court-Appointed Mediators.
This is my summary of the significant MEAC opinions for 2014. Each summary is hyper-linked to a copy of the original source document.
Summary: As is clearly stated in the civil, family, juvenile and appellate rules, a mediator may report only “agreement” or “no agreement” to the court without comment or recommendation. No descriptors or modifiers may be used in the mediator report. Note: MEAC 2014-002 rescinds MEAC 2012-009, Answer to Question One, and any other opinion in consistent with it. Citations: Rules of Civil Procedure 1.730(a) – (b); Rules of Juvenile Procedure 8.290(o)(2); Rules of Procedure 9.740(a); Rules of Procedure 12.740(f)(3) Sections 44.401-405, Florida Statutes; MEAC Opinions 2013-006, 2012-009, 2010-012 and 2010-007.
Summary: In the scenario presented, if conducting mediation in a language common to all parties and the mediator, it is inappropriate for a mediator to then memorialize any agreement reached in a language other than the one in which the mediation was conducted. Citations: Rules 10.340(d) and 10.410, MEAC Opinion 2011-017.
Summary: A mediator’s fee may never be based on the outcome of the mediation. Citations: Rules 10.340(d) and 10.410, MEAC Opinion 2011-017.
Summary: A mediator may not file a Notice of Mediation unless there is a court order referring the parties to mediation and the parties have selected that mediator or the parties have stipulated in writing to mediation and to that mediator in their case. Citations: Rule 10.520.
Summary: This opinion contains multiple questions regarding the confidentiality provisions of a Residential Mortgage Foreclosure Mediation Program (“RMFM Program”). The confidentiality of a court-ordered mediation begins when the order is issued by the court referring the parties to mediation. Whether subornation of perjury constitutes an exception to confidentiality under section 44.405, Florida Statutes, is a legal question and therefore the MEAC will refrain from responding to this inquiry. If one of the conditions for termination of the mediation set forth in rule 10.420(b) is present, a mediator is required to terminate the mediation. A mediator shall not report to the court or the RMFM Program Administrator directly, or indirectly, as to the cause for termination. Citations: Rules 10.310 and 10.420(b)(2)-(5), Sections 44.401-44.406, Florida Statutes, MEAC Opinion 2010-007.
Summary: Rule 10.420(a), Florida Rules for Certified and Court-Appointed Mediators, by use of the term “shall,” makes delivering an opening statement (orientation session), by a mediator, mandatory. Citation: Rules 10.200, 10.420(a) and (c), MQAP Opinion 1995-009.
Summary: A trainee observing a mediation to fulfill mentoring requirements for initial mediator certification may not serve in the dual capacities of trainee and language translator or interpreter. Citation: Section 44.403(2), Florida Statutes, In re: Procedures Governing Certification of Mediators, Fla. Admin. Order No. AOSC11-1 (January 10, 2011), MEAC Opinion 2011-017.
Summary: If a mediator mediates a case pursuant to or governed by local rule 9019-2(C)(4)1 of the U.S. Bankruptcy Court for the Southern District of Florida, the mediator is accountable to the court in a manner consistent with the Florida Rules for Certified and Court-Appointed Mediators (see rules 10.500 and 10.520). If the parties wish to proceed after having being advised by the mediator in the orientation session of this federal court’s requirements regarding mediator disclosure to the court, there is no violation of mediator ethics. Citations: Rules 10.500, 10.520, Florida Rules for Certified and Court- Appointed Mediators, Section 44.405, Florida Statutes Local Rule 9019-2(C)(4), U.S. Bankruptcy Court for the Southern District of Florida MEAC Opinion 2012-005.
Summary: MEAC notes a distinction between the filing of a notice of mediation with the court and notifying the parties in writing of the date, time, and specifics of a mediation. The Florida Rules for Certified and Court-Appointed Mediators and Florida procedural rules regarding mediation make mention of a mediator notifying parties but are silent as to whether a mediator may or may not file a notice of mediation with the court. The Committee is of the opinion that a mediator may not file a notice of mediation with the court unless the parties have agreed to use the mediator; the court has designated a mediation program which selects that mediator; or the court selects that mediator directly. Citations: Florida Rules for Certified and Court-Appointed Mediators, Florida Rules of Appellate Procedure 9.720, Florida Rules of Civil Procedure 1.700, Florida Family Law Rules of Civil Procedure 12.010 and 12.740-12.742, and Florida Rule of Juvenile Procedure 8.290.