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 MEAC opinions for 2016. Each summary is hyper-linked to a copy of the original source document.
2016-001 (The use of caucus)
A mediator is responsible for safeguarding the mediation process. In the scenario described by the inquirer, if the mediator decides that the process is best served by using caucus as a procedural tool, there is no rule which prohibits the mediator from doing so.
2016-002 (The title or role of “Officer of the Court.”)
Florida Supreme Court mediator certification does not convey the title or role of ”Officer of the Court.”
2016-003 (Mediation communications to from mediator’s support staff)
A mediator may ask office staff to perform the administrative duty of copying confidential documents obtained by the mediator during the course of the mediation. The mediator has an affirmative obligation to advise office staff performing such clerical tasks in furtherance of the mediator’s rendition of services to the mediation participants that these documents are confidential pursuant to rule 10.360(a), Florida Rules of Certified and Court Appointed Mediators, and sections 44.401-44.406, Florida Statutes, and further to ensure that staff fully understands the intent and practical implications of maintaining confidentiality. In MEAC Opinion 1997-009, MEAC opines that a mediator is required to maintain confidentiality and such obligation “extends to any administrative matter which may have been handled by program staff.”
A mediator may direct office staff to place the mediator’s notes, the signed agreement, and any other confidential materials exchanged during the mediation into an office file. As in Question One, the mediator has an affirmative obligation to advise staff performing such clerical tasks in furtherance of the mediator’s rendition of services to the mediation participants that these documents are confidential pursuant to rule I 0.360(a) and sections 44.401-44.406, and further to ensure that staff fully understands the intent and practical implications of maintaining confidentiality.
When mediating cases subject to the Florida Rules of Civil Procedure, a mediator cannot comply with rule 1.730(b) without confirming that the verbal agreement has been reduced to writing and signed by all parties and their attorneys, if any. The method by which the mediator complies with rules 10.420(c) and 1.730(b) together is determined by the mediator.
Rule 1.730(b) cannot be satisfied by a verbal mediation agreement. In MEAC 2015-005, the Committee noted that rule 10.420(c) does not require the mediator to write something regarding the terms of the agreement prior to the close of the mediation session if the parties have agreed who will memorialize the agreement and the process for its formalization.
When mediating cases subject to the Florida Rules of Civil Procedure, the mediator has an obligation to follow up with the parties and their counsels to make sure the verbal mediation agreement is reduced to writing and signed by all parties and their attorneys, if any, prior to making a report to the court.
In the example presented, the mediator would report “no agreement” under rule I. 730(b). There is no provision in Chapter 44, Mediation Alternatives to Judicial Action, or any Florida trial or appellate court procedural rule that authorizes a mediator to report a verbal mediation agreement to the court.
2016-005 (Mediator’s support staff as notary or witness)
The Florida Rules for Certified and Court-Appointed Mediators do not prohibit a mediator’s support staff from notarizing or witnessing signatures on settlement agreements. In accordance with rule 10.220, Scope and Purpose, the Florida Rules for Certified and Court-Appointed Mediators were created to “provide ethical standards of conduct for certified and court-appointed mediators.” [Emphasis added.] These ethical standards do not extend to persons who are not Florida Supreme Court certified mediators or court-appointed mediators.
2016-006 (Orientation session is mandatory)
A mediator is not permitted nor may suggest or offer the option of conducting a single orientation session for multiple plaintiffs and defendants in different cases. Rule 10.420(a), Florida Rules for Certified and Court-Appointed Mediators, provides that, “upon commencement of the mediation session, a mediator shall describe the mediation process and the role of the mediator, and shall inform the mediation participants that (I) mediation is a consensual process; (2) the mediator is an impartial facilitator without authority to impose a resolution or adjudicate any aspect of the dispute; and (3) communications made during the process are confidential except where disclosure is required or permitted by law.” The rule expressly states “mediation session,” which indicates one set of parties involved in one particular case. MEAC further opines that, if the orientation session (or any part of a mediation session) occurs with other parties from unrelated cases, confidentiality is compromised. See Mediation Confidentiality and Privilege Act, sections 44.401-406, Florida Statutes.
Rule 10.420(a) does not give the mediator authority to ask parties or counsel if they wish to waive a mediator’s orientation session. See MEAC Opinion 2014-008.
Rule 10.420(a) does not permit a mediator to refrain from delivering an orientation session at the commencement of each mediation session, even if all the elements of rule 10.420(a) were covered by court personnel or anyone else prior to the mediation. See MEAC Opinion 2014-008.