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 (effective January 1, 2017).
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 2017. Each summary is hyper-linked to a copy of the original source document.
Summary: A mediator may not refer a party to a specific lawyer or not-for-profit advocacy group when contacted by the party after a mediation. Such a referral would be inconsistent with the mediator’s duty to maintain impartiality throughout the mediation process.
Opinion: A mediator’s impartiality is essential to the mediation process and must be maintained throughout the entire process. Rule I0.330(a), Florida Rules for Certified and Court-Appointed Mediators, states:
Generally. A mediator shall maintain impartiality throughout the mediation process.
Impartiality means freedom from favoritism or bias in word, action, or appearance, and
includes a commitment to assist all parties, as opposed to any one individual.
There is no rule which prohibits a mediator from speaking to a party after a mediation; however, the mediator must continue to provide information in a manner “consistent with standards of impartiality” under rule I0.370(a). In order to refrain from “bias in word, action, or appearance” and continue the “commitment to assist all parties, as opposed to any one individual,” rule I0.330(a), the mediator in the question presented may continue to advise a party of their right to seek independent legal counsel as set forth in rule I0.370(b) after a mediation, but should not recommend a specific lawyer or not-for-profit advocacy group. A specific referral would be inconsistent with the mediator’ s duty to maintain impartiality throughout the mediation process as it would be assisting one individual. The mediator’s continuing duty to remain impartial is confirmed by rule I0.620, Integrity and Impartiality, “A mediator shall not accept any engagement, provide any service, or perform any act that would compromise the mediator’s integrity or impartiality.”
Summary: A mediator shall not schedule a mediation in a manner that does not provide adequate time for the parties to fully exercise their right of self-determination. The process must allow for the mediation to be adjourned and reconvened to complete the mediation if the parties so choose. A mediator must respond in a manner consistent with the Rules for Certified and Court Appointed Mediators when asked by pro se parties to provide information. A mediator may assist the party in filling out Florida Supreme Court approved forms, but must ensure that the information provided for the forms is from the party whom they are assisting.
Opinion: Rule 10.400 states that a mediator is responsible for safeguarding the mediation process and the Committee Notes to the rule describe rules 10.400 – 10.430, pertaining to the mediator’s responsibilities to the mediation process, as containing a mandate for adequate time for mediation sessions, and the process for adjournment.
A party’s right to self-determination is essential to the mediation process and must be maintained throughout the entire process. Rule 10.430, Florida Rules for Certified and Court Appointed Mediators, states:
“A mediator shall schedule a mediation in a manner that provides adequate time for the
parties to exercise their right of self-determination.”
Under rule 10.420(b)(l), one of the mediator’s responsibilities is to offer the parties the option of adjourning the mediation to return on another day for an additional session if they so choose. This choice is part of the parties’ right of self-determination and would apply to the scenario described herein.
There is no rule that states a specific amount of time must be delegated for a mediation session. Some mediations take longer than others due to any number of factors, including the complexity of the issues and the parties to the case. It would not be correct to say that a mediation cannot be completed in two hours, or any specific amount of time, and conversely it would not be correct to say a mediation must be completed in two hours, or any specific amount of time. Rule I0.430 requires that the parties be provided adequate time to exercise their right of self-determination; therefore, it must be the party’s exercise of self-determination that dictates the time required to mediate and not the mediator or a person/entity responsible for scheduling the mediation.
Rule 10.370(a) provides that “a mediator may provide information that the mediator is qualified by training or experience to provide.” The mediator is constrained by rule 10.370(c) which states “a mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct resolution of any issue.” Consistent with MEAC Opinions 2000-009, 2001-003, and 2009-007, a mediator may assist prose litigants with filling out forms approved by the Florida Supreme Court, however, the information submitted on the forms must come from the party whom the mediator is assisting. In the example provided, it would be appropriate for the mediator to provide a source for the
definition of a contingent asset, which in this case would be the Florida Supreme Court Long Form Financial Affidavit’s instructions, Step 4, the definition of “possible assets.” However, it would not be appropriate under the rules for the mediator to determine or advise the party whether an asset is a contingent asset.
Summary: A mediator’s business practices regarding fees and expenses must be consistent with rule I0.380 and the other standards of ethical conduct in the Florida Rules for Certified and Court Appointed Mediators. Any change in the terms and conditions of the fees and expenses must be agreed upon by the parties so as to be consistent with self-determination and impartiality.
Opinion: At the outset, it is important to note the general principle regarding mediation fees and costs stated in rule l0.380(a), Florida Rules for Certified and Court-Appointed Mediators, that “a mediator holds a position of trust.” “The public’s use, understanding, and satisfaction with mediation can only be achieved if mediators embrace the highest ethical principles,” rule I0.200. The parties’ trust is established by their experiences with the mediator.
The MEAC believes any change to the terms and conditions of fees and costs after the parties have received the mediator’s written explanation of them should only occur if the mediator proposes the revisions with enough advance notice to allow the pat1ies a reasonable amount of time to make an informed and voluntary decision regarding the revisions or opt to choose another mediator. Allowing the parties such time will: safeguard the parties’ trust in the mediator; protect their self-determination and avoid any appearance of coercion by the mediator, rules 10.220, 10.300, 10.310(b); avoid the appearance of partiality in the event that the change could appear to favor one party, rule 10.330(a); and maintain equal bargaining power between Mediator Ethics Advisory Committee Opinion 2017-004 the mediator and the parties regarding the fees and costs, rule 10.410. The mediator’s conduct prior to the beginning of mediation sets the tone for the entire process.
The situation posed in the second question highlights the ethical issues raised by the mediator changing the terms of the fee and cost payment after the parties have received the mediator’s written explanation. Changing the terms and conditions upon arrival of the parties at mediation may create an environment in which the pat1ies may believe that they are being improperly influenced or coerced to agree to the new terms and conditions, and they have no choice but to do so or incur the cost (lost salary for time away from work, transportation, child care, etc.) and time delay of scheduling mediation with another mediator. Additional pressure to agree may be experienced by the parties if they have an upcoming court date which does not permit them to choose a different mediator. The parties arrive at mediation relying on the terms and conditions they have received. Creating an environment in which the parties are asked to make a decision about new fee and cost terms and conditions quickly, perceive that they have no choice, or feel like they do not have equal bargaining power with the mediator, is likely to break their trust in the mediator and affect their satisfaction with the mediation process. As with any issue presented at mediation, the rules mentioned above require that the parties must be allowed sufficient time to make an informed and voluntary decision regarding the changes, including, if needed, time to negotiate the changes.
It is not permissible for the mediator, without the informed and voluntary consent of all parties to unilaterally change the parties’ pro rata share of the mediator’s fees as doing so would violate the parties’ rights to self-determination and fail to maintain the mediator’s impartiality as explained above.
The mediator may not condition their performance on one of the parties or lawyers agreeing to pay the other party’s share of the mediator’s fee in the event that the other party fails to pay unless the mediator has provided the parties or their lawyers with a written explanation of this condition prior to mediation as required by rule 10.380(c) and the parties have agreed to it as required by 10.380(c)(4). If the mediator made such a condition without meeting the requirements of the rule, the mediator would be failing to maintain their impartiality, rule 10.330(a), and creating a conflict of interest under rule 10.340(a) by favoring the party who is not responsible for their own fee.
Summary: A mediator’s business practices as to fees must reflect the principle of impartiality and be consistent with rule 10.380, Florida Rules for Certified and Court-Appointed Mediators.
Opinion: A mediator’s responsibility to the parties includes the ethical principle that “a mediator’s business practices should reflect fairness, integrity and impartiality,” rule 10.300, Florida Rules for Certified and Court-Appointed Mediators. Rule 10.330 requires that a mediator “maintain impartiality throughout the mediation process,” and defines “impartiality” as freedom from favoritism or bias in word, action, or appearance,” including “a commitment to assist all parties, as opposed to any one individual.”
Under the scenario presented, if the parties are dissatisfied with the mediator’s performance at mediation (even for a case that settles), it is permissible for the mediator to waive their mediator’s fee as to all parties. However, if one party is dissatisfied with the mediator’s performance, it is not permissible for the mediator to waive their fee as to the dissatisfied party and still charge the other party as doing so would violate the mediator’s impartiality by favoring and assisting one party. Unless the mediator’s fee is waived as to all parties, the mediator’s business practice is not consistent with rules 10.330, and 10.380(b)(3) and (c)(4).
In the scenario described, the MEAC does not believe that waiving the mediator’s fee for both parties based on their dissatisfaction with the mediation process is a violation of rule 10.380(t) as doing so is not based on the outcome of the process, but the parties’ opinion of the process regardless of the outcome.
Summary: A mediator may report “agreement,” “no agreement,” or “partial agreement” to the court without comment or recommendation. No other descriptors or modifiers may be used in the mediator report unless the parties have consented to them in writing.
Opinion: After review of previous MEAC opinions and analysis of the various rules of procedure regarding reporting the outcome of a mediation, the MEAC retracts its 2014-002 opinion and any other opinion inconsistent with this opinion. The committee interprets the rules to allow a mediator to report “agreement,” “no agreement,” or “partial agreement” to the court, without comment or recommendation.
Further, as is stated in Florida Rule of Civil Procedure 1.730(a) and Family Law Rule of Procedure 12.740(f)(3), in civil and family law cases only, with the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. To report anything additional without agreement of the parties, or add descriptors or modifiers to “agreement,” “no agreement,” or “partial agreement,” would be providing information to the court, an action which is prohibited by the Mediation Confidentiality and Privilege Act, sections 44.401-405, Florida Statutes. However, these rules do not restrict the parties from including in the written agreement their consent to the inclusion of additional language, descriptors, or modifiers in the mediator’s report.
Summary: If a mediator is a party in case A, it would be a clear conflict of interest which would compromise the mediator’s impartiality for the mediator to mediate case B which involves the mediator’s attorney and the attorney and opposing party in case A.
Opinion: According to the scenario presented, Mr. Smith is a party in the Miami-Dade County cases and it appears that Law Firm CDE represents him in those cases. Law Firm ABC represents Business XYZ which is the opposing party to Mr. Smith in a case. Due to Mr. Smith’s relationships with the law firms ABC and CDE and Business XYZ, his own attorney and the attorney and opposing party in the Miami-Dade County cases, his serving as a mediator for those parties would compromise or appear to compromise his impartiality, a violation of rule 10.330(a), Florida Rules for Certified and Court-Appointed Mediators. It would also create a clear and non-waivable conflict of interest under rule 10.340(a), Florida Rules for Certified and
The situation described by the inquirer in Scenario B is essentially identical to that described in Scenario A due to the fact that a bankruptcy trustee is a party in a bankruptcy case. The opinions expressed by the writer of the question that “the mediator has done things to the detriment of the debtor as trustee in the Middle District because she did not appreciate the behavior of Law Firm CDE in the Southern” and that the mediator is “a powerful” party with influence in another district” are not relevant to the MEAC’s disposition of the question, nor does the MEAC base its opinion on them. As in scenario A, in scenario B, the mediator is a party – the trustee – in cases involving Law Firms ABC and CDE and Business XYZ; therefore, the mediator cannot ethically mediate for the law firms and Business XYZ in other cases for the reasons stated in the answer to Scenario A above.
Summary: Prior consultation with a party to a mediation by a member of the mediator’s law firm requires disclosure by the mediator, but is a waivable if the parties agree.
Opinion: MEAC Opinions are based on the facts presented in the question. Rule 10.340(a)-(c), Florida Rules for Certified and Court-Appointed Mediators, states:
(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.
(b) Burden of Disclosure. The burden of disclosure of any potential conflict of interest rests on the mediator. Disclosure shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.
(c) Effect of Disclosure. After appropriate disclosure, the mediator may serve if all parties agree. However, if a conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.
In MEAC Opinion 2011-014 the committee stated that the factors of the particular case determine whether a conflict can be waived by the parties. In the case presented, the law firm did not engage in representation involving the party to the mediation and the mediator had no contact with the party who consulted with the attorneys at the firm so a clear conflict of interest is absent under subdivision (a) of the rule, however, the mediator must disclose the matter to the parties involved in the mediation according to subdivision (b), and the potential conflict is waivable if agreed to by the parties under subdivision (c). The circumstances written of here may reasonably be regarded as allowing the mediator to maintain impartiality under rule 10.330(a), Florida Rules for Certified and Court-Appointed Mediators, if the parties agree the consultation does not compromise the mediator’s impartiality.