MEAC Opinions - Confidentiality

Opinion

Subject Matter

Current Cites

2017-021

The MEAC answers several questions about a mediator filing a motion to quash a subpoena to testify in court about confidential mediation communications.

Section 44.405, Florida Statutes

Rules 10.360, 10.500, and 10.520, Florida Rules for Certified and Court-Appointed Mediators

2017-007

The confidentiality provisions which apply to Florida Supreme Court certified and court-appointed mediators are sections 44.401 - 44.406, Florida Statutes, and rule 10.360, Florida Rules for Certified and Court-Appointed Mediators.  The MEAC answers eight questions regarding the confidentiality agreement a mediator requires parties, counsel, and other mediation participants to sign at the beginning of their mediation session.

Rules 10.220, 10.300, 10.310, 10.360, and 10.380, Florida Rules for Certified and Court-Appointed Mediators

Mediation Confidentiality and Privilege Act, sections 44. 401-406, Florida Statutes

2016-003

A mediator may ask office staff to copy confidential documents obtained by the mediator during the course of the mediation and to place the mediator’s notes, the signed agreement, and any other confidential materials exchanged during the mediation into an office file.  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 the 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.

Rules 10.310 and 10.360(a)-(c),

Mediation Confidentiality and Privilege Act, sections 44.401-406, Florida Statutes 

2014-010

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.

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

2014-007

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.

Rules 10.310 and 10.420(b)(2)-(5),

Sections 44.401-44.406, Florida Statutes

MEAC Opinion 2010-007

2013-007

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.

Section 44.405 (4)(a), Florida Statutes (2013)

2013-003

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. 

Rules 10.360, 10.420(a) and 10.650

Sections 44.403 & 44.405, Florida Statutes (2012)

MEAC Opinion 2012-007

2013-001

Question one:  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.

Question two:  If a party appearing by phone fails to sign and return an agreement after agreeing to do so, that is a confidential “mediation communication.”

Question three:  The mediation unit cannot report to the court that a party has repeatedly not returned signed mediation agreements after agreeing to do so.

Question four:  A notification to the court that the mediator is “waiting for signatures” for an agreement is a breach of confidentiality.

Rules 10.310, 10.360(a), 10.420(a)

Rule 1.730(a) & (b)

MEAC Opinions 2004-006, 2010-007, 2010-012 and 2012-009 

• §44.403-405, Fla. Stat. (2012)

2012-010

Question one:  It is a breach of confidentiality to file a mediation report and agreement when a party’s signature is missing. 

Question two:  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. 

a.  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.

b. In the absence of signatures from all parties on a drafted agreement, the mediator should file a report of “no agreement.”

2012-007

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.

Rules 10.330 (a) & (b), 10.360, 10.420 (b) and 10.650

Sections 401- 406, Chapter 44, Florida Statutes

MEAC Opinion 2012 – 001

2012-005

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.

Rules 10.360, 10.420(a)(3), 10.500, 10.520

Rule 9019-2(d)(2) of the local rules of the Bankruptcy Court for the Middle District of Florida

Sections 401-405, Chapter 44

MEAC Opinions 2004-006 and 2006-003

2012-002

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.

Rules 10.330 and 10.370

Section 44.405(a)(2), Chapter 44, Florida Statutes

2012-001

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.

Rules 10.360. 10.400, 10.420(b)(2)-(4),

Section 405, (4)(a)(1)-(6), Chapter 44, Florida Statutes

2011-007

Question One:  How to handle a situation when a mediation disagreement takes on an unprofessional tone is primarily a matter of mediator technique and practice and further calls into consideration the mediator’s duty to maintain a balanced process and to consider options for termination and adjournment referenced in the Rules for Certified and Court-Appointed Mediators.

Question Two:  What a mediator is to do when mediation participants are acting unprofessionally and preventing a resolution of issues is a matter of  mediator training and skill, and is generally dealt with by Rules 10.410 (Balanced Process) and 10.420(b)(3) (Conduct of Mediation).

Questions Three and Four:  While it may be beneficial for the employing company of the professional to know that the professional is behaving in a way the mediator considers “unprofessional,” a disclosure of unprofessional conduct to the company that the offending professional is employed by is prohibited by the Mediation Confidentiality and Privilege Act (Section 405, Chapter 44, Florida Statutes).

Rules 10.360, 10.410, and 10.420(b)(3)

Section 405, Chapter 44, Florida Statutes, 2010

2011-003

A certified mediator may report an attorney's misconduct, solely for the internal use of the body conducting the investigation of the conduct, without violating ethical duties.

Sections 405(4)(a) and 4(a)(6), Chapter 44, Florida Statutes

Rules 10.360(a) and 10.650,

Rule 4-8.3, Rules Regulating The Florida Bar

2011-002

A mediator can complete and submit the Department of Financial Services Disposition of Property Insurance Mediation Conference form referencing a “first offer” if this information is not a mediation communication protected from disclosure by Florida Statute Chapter 44, sections 401-405, Mediation Confidentiality and Privilege Act. 

Rules 10.360 (a) and 10.520

F.S. sections 44.401-405 and 627.7015

DFS Form “Disposition of Property Insurance Mediation Conference.”

DFS Department Rule 69J-166.031

2010-002

A mediation party does not have the right to restrict another party from access to mediation communications as they belong equally to both parties.  A mediator could have given both parties a copy of the unsigned document, even over the objection of one of the parties.

Rules 10.310(a), 10.360(b), 10.370(b)

Rule 12.40(f), Florida Family Law Rules of Procedure 

Sections 403-406, Florida Statutes

2009-011

While the parties have the ability to make decisions regarding the mediation process, mediators have an obligation to adhere to the law and Florida Rules for Certified and Court-Appointed Mediators.  If decisions made by the parties in the mediation process raise ethical issues for the mediator, the mediator must decide how, and if, the process will continue.

Rules 10.210, 10.400, 10.420(b)(3), 10.520

Sections 401-406, Mediation Confidentiality & Privilege Act, Florida Statute

AOSC09-54 In Re Final Report and Recommendations on Residential Mortgage Foreclosure Cases

2007-001

A mediator may report a party’s failure to appear at mediation so long as it is based on the physical fact of a failure to appear and not on a mediation communication or assertion.

Rules 10.360 and 10.510, Section 44.403(1), Florida Statutes

Merriam-Webster Online

MEAC 2005-007

Areizaga v. Board of County Commissioners of Hillsborough County, 935 So. 2d 640 (Fla. 2nd DCA 2006)

2006-008

A. A mediator may report to the court that a party or counsel has failed to attend a mediation if this conclusion is based on observation by the mediator and is not dependent on a “mediation communication” as defined in 44.403, Florida Statutes. 

B.   The mediator may report the fact of nonpayment of mediation fees to the court.   

Rule 10.520,

Section 44.403, Florida Statutes

MEAC Opinions: 95-001 and 2006-003

2006-005

The filing of a grievance with The Florida Bar is not necessarily precluded by statutory and rule confidentiality requirements.  However, based on the facts of this question, the filing of a grievance with The Florida Bar is prohibited.  Whether any other persons may report the attorney litigant’s action to The Florida Bar is beyond the scope of the Committee’s function since it would involve an interpretation of the attorney ethics code.    

Rules 10.330, 10.360, 10.400, 10.600

Sections 44.403(1) and 44.405(4)(a) Florida Statutes

Rules Regulating The Florida Bar 4-8.3 and Comments to 4-1.12  

2006-003

A) Yes, it would be an ethical violation to report to the court that a party did not have full settlement authority.  Under the circumstances presented, the mediator is limited to reporting that no agreement was reached. 

B)  No, the parties’ signatures on the stipulation form are insufficient to authorize a mediator to disclose otherwise confidential information.

Rules 10.360, 10.500;

1.720(b) and 1.730(a)

Sections 44.401 – 44.406, Florida Statutes

MEAC 95-009, 99-002, 2001-010 and 2004-006

2005-005

    1. While a mediation unit is not a mediator per se, many of the communications made to the mediation unit would be included under the umbrella of confidentiality.  Each co-mediator is to be treated as a mediator subject to the Florida Mediation Confidentiality and Privilege Act.  The Committee declines to answer the question whether the party breached confidentiality as being beyond its jurisdiction.

    2 and 3. Assuming the party has affirmatively requested that the complaint be handled at the trial court level, the mediator may reveal mediation communications to the mediation office charged with investigating the conduct.

     4. Revelations made by a mediator in furtherance of a grievance investigation should be kept in a separate file independent from the court file.

    5. The relationship described in the question would not necessarily be a “clear conflict” requiring the withdrawal of the mediator regardless of the express agreement of the parties.  However, if the mediator is no longer impartial or the parties request that the mediator no longer continue, the mediator is required to withdraw from the mediation.

    6. A different mediator within the mediation unit may mediate if all parties, being aware of the relationship, are agreeable to proceeding.

     7, 8, and 9. The Committee declines to answer these questions because they are outside the Committee’s jurisdiction.

Rules 10.230(f), 10.300, 10.330, 10.340(b) and (c), 10.410, 10.810(b) and (c), 10.900(a), Committee Notes to Rule 10.340

Sections 44.401 – 44.406, Florida Statutes

2005-003

The Committee lacks the jurisdiction to determine whether a mediation should be treated as a negotiation for purposes of sections 447.605(2) and 286.011(3), Florida Statutes.  However, if a mediation falls within the scope of the Mediation and Confidentiality and Privilege Act, then all mediation participants are obligated to adhere to its provisions.

Sections 44.401 – 44.406, Florida Statutes

2004-011

A.  Absent either waiver by the parties or a requirement to report imposed by law, a certified or court-appointed mediator shall not reveal information communicated during a mediation. 

B.  The Florida Bar would be the appropriate body to provide guidance in relation to attorney ethical questions.  With regards to the mediator standards, Rule 10.620 states that a mediator “shall not … perform any act that would compromise the mediator’s integrity or impartiality,” both of which appear to be brought into question in the scenario described.   

Rules 10.360, 10.520, and 10.620

Sections 44.401-44.406, Florida Statutes

MQB 2003-002

Note: Changes to the rules in 2006 may impact this opinion.

2004-010

The written apology you reference falls within the definition of a “mediation communication” and, therefore, it is confidential, since it is not included in the written agreement, has not been waived by the parties, and does not fall within any of the enumerated exceptions under section 44.405(4)(a), Florida Statutes.

Rule 10.360(a)

Sections 44.401 – 44.106, Florida Statutes

Section 69.081(8) and Chapter 688, Florida Statutes

Note: Changes to the rules in 2006 may impact this opinion.

2003-008

There is no ethical violation for a mediator to complete statistical forms so long as the mediator does not reveal any confidential communications from the mediation.  A county court mediator may sign a statistical form since a mediator has an ethical duty to assist the court in maintaining these types of records.

Rules 10.360(a) and (c), 10.510, 10.520;

1.730(a) and (b)

Section 44.405(2), Florida Statutes

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2003-007

A mediator does not commit an ethical violation by merely distributing, at the request of a judge, a form to parties requiring them to describe the basis for contesting the claim or counterclaim so long as the mediator plays no role in assisting the parties in completing the form, and there is a clear distinction between the end of the mediation and the completion of the form.

Rules 10.520;

1.730(a); 7.090

Section 44.405(2), Florida Statutes

MEAC 2001-007

Note: Changes to the statute in 2004 may impact this opinion.

2003-005

A mediator may establish a ground rule for the mediation that nothing in caucus will be deemed confidential unless a party specifically indicates that it should be confidential, if the party has expressly consented to such a procedure.

Rules 10.360(a) – (b) and 10.420(a)(3)

Note: Changes to the rules in 2006 may impact this opinion.

2003-003

There is no requirement that a mediator go into detail as to any specific statutory provisions.

Rules 10.370(a) and 10.420(a)(3),

MEAC 2000-010

Note: Changes to the rules in 2006 may impact this opinion.

2002-002

The Committee retains confidence in the continuing correctness of MEAC 2001-005.

Rule 10.360(a)

Section 44.405(2), Florida Statutes

Chapter 90-188, Laws of Florida

MEAC 2001-005

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2001-010

If a party’s representative reveals a lack of “full authority” in joint session and the other party decides to end the mediation, the mediator may report to the court such “nonappearance” without violating the confidentiality of mediation if the lack of authority was not revealed in caucus.

Note: Read MEAC Opinion 2006-003 as it has rescinded portions of MEAC 2001-010

Rules 10.330, 10.360, 1.720(b), 1.750(e), 7.090(f)

MEAC 99-002

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2001-008

A mediator should not voluntarily prepare an affidavit or voluntarily testify regarding the papers which were brought to mediation based on rules governing impartiality and confidentiality. 

Rules 10.330 and 10.360(a); Sections 44.405(2), 44.201(5), Florida Statutes

MEAC 96-005, 99-012, 2001-002, 2001-005;

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2001-005

A non-attorney Florida Supreme Court certified mediator should not disclose communications made during a Florida Bar Grievance Mediation session even if such testimony may be relevant in a subsequent disciplinary proceeding.  

Rule 3-8.1(i), Rules Regulating the Florida Bar;

Rules 10.360(a), 10.650;

Section 44.405(2), Florida Statutes

MEAC 96-005, 99-012, 2001-002 

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2001-002

A mediator should not voluntary agree to testify in a bar grievance proceeding in order to preserve the statutory and court rule confidentiality provisions, unless ordered by a court to do so.

Rule 10.360(a);

Section 44.405(2), Florida Statutes;

MEAC 96-005, 99-012

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2000-010

Rule 10.420(a)(3) requires a mediator to inform mediation participants that mediation communications are confidential, except where disclosure is required by law. There is no requirement to go into detail as to any specific statutory provisions.

Rules 10.420(a)(3) and 10.900(a);

Sections 39.201, 44.405(2) and 415.1034, Florida Statutes

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2000-002

A mediator is not ethically prohibited from signing an agreement to mediate which states that for mediations conducted under the program, the mediator agrees not to voluntarily testify “unless one of the participants makes a genuine threat of physical harm, reports criminal activity... reports fraud or abuse of postal property or suspected child or elder abuse.”  If an issue listed in the statement is revealed during a mediation, the mediator may report the activity without committing an ethical violation. 

Rules 10.200; 1.700 - 1.750; 8.290; 12.740, 12.741;

Section 44.405(2), Florida Statutes;

MEAC 96-005, 99-012

Note: Changes to the statute in 2004 may impact this opinion.

99-012

(a) At the conclusion of a family mediation, upon request from an attorney, a mediator may, under certain conditions disclose to the party’s attorney(s) the factual circumstances surrounding a mediation agreement; however, under no circumstances would it be appropriate for a mediator to offer his/her personal opinion about the case.

(b) A mediator should not voluntarily testify in court regarding information learned in mediation.  The mediator may testify if all parties waive their privilege or the court orders the mediator to testify.

Rules 10.330, 10.360(a), 10.360(b), 10.520

Section 44.405(2), Florida Statutes

MEAC 96-005

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

99-010

There is no statutory or rule requirement that a mediator’s notes taken during a family mediation be kept in the file. Any notes which relate to confidential information cannot be part of a public file.

Rules 2.051(c)(7)

(Rules of Judicial Administration);

10.360; 12.740(f)(3);

Section 44.405(2), Florida Statute

Ch. 119, Florida Statutes

Note: Changes to the statute in 2004 may impact this opinion.

99-002

A mediator may not report to the court information regarding authority if learned in caucus. A mediator may report to the court that one or more parties did not appear at mediation if learned outside of caucus. A mediator is not prohibited from contact with a party over objection of counsel, but should consider the impact of such decision.

Note: Read MEAC Opinion 2006-003 as it has rescinded portions of MEAC 1999-002  

Rules 10.310, 10.330, 10.360(a) -(b), 10.370, 10.420(b);

1.720(b) and (e);

Section 44.405(2), Florida Statutes

Note: Changes to the statute in 2004 and rules in 2000 & 2006 may  impact this opinion.

97-009

Information obtained from parties prior to the commencement of mediation which would be confidential if obtained during mediation, is confidential.

Rules 10.230(e), 10.360(a);

Statute 44.405(2);

MEAC 96-005

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

97-006

A psychologist mediator has no duty to warn an individual of a threat which becomes known during a mediation.

Rule 10.650;

Sections 44.405(2), 455.2415, 490.0147, 491.0147, Florida Statutes

Note: Changes to rules in 2000 and the statute in 2004 may impact this opinion.

96-005

A mediator should not voluntarily report nor testify about threats made during mediation.

Rule 10.360(a);

Section 44.405(2), Florida Statute

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

95-010

A mediator may not disclose information to a party’s attorney who does not attend mediation.

Rules 10.360(a), 10.370(b);

Section 44.405(2), Florida Statutes

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

95-003

If a party wishes to make a phone call to aid decision- making or agreement, the mediator should remind the party of the confidentiality privilege.

Rules 10.360(a), 10.520; 1.720(b);

Sections 44.405(2), 90.507, Florida Statutes

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.