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 2013. Each summary is hyper-linked to a copy of the original source document.
It is a breach of confidentiality for a certified mediator to report to the court that a party who appears telephonically or by other electronic means pursuant to court order, failed to return the signed agreement after verbally agreeing to sign it. If a party appearing by phone fails to sign and return an agreement after agreeing to do so, that is a confidential “mediation communication.” The mediation unit cannot report to the court that a party has repeatedly not returned signed mediation agreements after agreeing to do so. A notification to the court that the mediator is “waiting for signatures” for an agreement is a breach of confidentiality.
Unless a crime disclosed to the mediator in caucus falls under one of the exceptions to confidentiality for mediation communications in section 44.405, Florida Statutes (2012), the mediator should not report it. If a mediator decides, during the course of the mediation, that the mediator will make such a report, the mediator must withdraw from the mediation.
If a mediator believes that financially contributing to a judicial campaign or signing a petition supporting a candidate for judge who would preside over the court in which the mediator mediates would compromise or could have the appearance of compromising the mediator’s impartiality or the relationship with the judge, it is ethically correct for the mediator to decline to do so.
It is beyond the scope of a mediator’s role and responsibilities to complete and file a “Notice of Confidential Information within Court Filing” pursuant to rule 2.420(d)(2), Florida Rules of Judicial Administration.
This opinion focuses on several questions related to the appropriateness of a mediator raising issues during mediation. In this case the questions pertain to a family mediation setting but the MEAC responses are not limited to family mediation unless so stated.
Unless the parties have agreed otherwise, written communications included in a mediated agreement that has been signed by all parties and counsel are not confidential.
As long as the advertising is consistent with mediation statutes, court rules, administrative orders, and the Rules for Certified and Court-Appointed Mediators, a mediator may employ an individual on his or her behalf to market mediation services.
Engaging in the dual role of mediator and notary is ethically inappropriate.
It is a clear conflict of interest for a mediator to mediate a case when a party’s attorney is or was previously related to the mediator. A clear conflict of interest cannot be waived regardless of disclosure.
The Notice of Vendor Expectations (Notice) the mediator is questioning creates a non-waivable conflict of interest because of the language it contains.
A Florida Supreme Court certified mediator subject to local rule 9019-2(A)(5), United States Bankruptcy Court, Southern District of Florida, who is mediating in the Loss Mitigation Mediation Program, may sign the referenced mediator’s oath currently required by the rule without violating the Florida Rules for Certified and Court-Appointed Mediators.