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.
I’ve found the MEAC opinions to be a valuable resource in my mediation practice, and would recommend them to anyone who professionally mediates in this state. To that end, below is my summary of the MEAC opinions for 2012. Each summary is hyper-linked to a copy of the original source document.
It is permissible for certified mediators to disclose mediation communications that are not confidential. In the example provided, the mediator may disclose information to an outside party, e.g., a law enforcement officer.
While mediation communications of a disbarred attorney representing himself as an attorney currently a member of The Florida Bar are not confidential, there is no mandatory requirement that the mediator or mediation participants report the actions of the disbarred attorney.
In this example, the conflict is resolvable with appropriate mediator disclosures and party agreement as outlined in the Committee Note to Rule 10.340, Conflicts of Interest, Florida Rules for Certified and Court-Appointed Mediators.
In a case in which a mediator’s former law 004 partner is representing a party as an advocate subsequent to the mediator leaving the law firm, there is no pre-determined amount of time that must elapse before the mediator may mediate such cases. In conflict of interest cases, each case must be evaluated individually through a series of filters to determine if the conflict is waivable or a “clear” conflict and therefore non waivable. It is a clear conflict of interest for a mediator to mediate a case in which his/her former law partners represented any of the parties while the partnership was in effect. This would be a non waivable conflict.
In accordance with Rule 10.520, a certified mediator conducting a mediation in U.S. Bankruptcy Court for the Middle District of Florida who discloses that “a party failed to negotiate in good faith” or “willfully failed to appear at mediation” does not violate the mediator’s ethical responsibilities to mediation confidentiality as such disclosure is required by the local rules of that court.
Under certain circumstances, an attorney who conducted a joint representation of a couple in an adoption or in working with them on an estate plan, may, upon both parties’ request, subsequently serve as their mediator in an unrelated legal proceeding.
The facts in this example may constitute an exception to confidentiality under section 44.405(4)(a)(2), Florida Statutes (2012), nevertheless, there is no mandatory obligation for a mediator to report that a sworn indigent form is false or that the crime of perjury is being committed. Section 44.405(4)(a)(2), provides an exception to confidentiality if a mediator learns through a mediation communication information “that is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threatens violence.” This section of the Florida Statute is silent with respect to past crimes. The mediator may disclose to an appropriate authority a “mediation communication that is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.” If a mediator decides, during the mediation process, that s/he will report a party’s mediation communications to an appropriate authority, the mediator must withdraw. Pursuant to rule 10.420(b), Florida Rules for Certified and Court- Appointed Mediators, whether termination or adjournment is appropriate depends on the circumstances of the individual case.
It would be inappropriate and improper for a certified mediator to offer remuneration to individuals who refer students to the certified mediator’s mediation certification training programs and any other mediation trainings.
Your circuit’s mediation report form which has the outcomes: “agreement,” “partial agreement,” “no agreement,” or “continuance” (adjournment), meets the requirements of the Florida Rules of Civil Procedure and the Florida Family Law Rules of Procedure. Note: MEAC 2014- 002 rescinds MEAC 2012-009, Answer to Question One, and any other opinion in consistent with it. It is a clear violation of Florida Rule of Civil Procedure 1.730(a) to add the term “signed” to a description of an agreement in a mediation report. The interpretation of Florida Family Law Rule of Procedure 12.740(f)(1) on which this question is based is erroneous. Although rule 12.740(f)(1) allows the parties to agree to electronically or stenographically record an agreement, that agreement must be “made under oath or affirmed” and the transcript of such agreement must then be signed by all parties before being filed with the court.
It is a breach of confidentiality to file a mediation report and agreement when a party’s signature is missing. The mediator should not file the mediation report and agreement prepared at the mediation which was signed by only one party; it is not an agreement and therefore the terms are subject to the statute and rules regarding confidential mediation communications. If either party requests a copy of the draft agreement, the mediator should provide copies to all parties. If no request for a copy of the report or agreement is made, the mediator should follow his/her normal procedures for notes taken during a mediation in which no agreement was reached. In the absence of signatures from all parties on a drafted agreement, the mediator should file a report of “no agreement.”