ADR CORNER
ADR CORNER
ALFRED A . LASORTE , JR ..
Mediation Confidentiality – Can a Mediator Be Compelled To Testify About What Happened at Mediation ?
Lawyers often tell their clients that mediation communications are privileged . But Florida ’ s Mediation Confidentiality and Privilege Act , F . S . Section 44.401 et . seq ., has some exceptions .
First , the rules :
F . S . 44.405 ( 1 ): “ Except as provided in this section , all mediation communications shall be confidential . A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant ’ s counsel .”
F . S . 44.405 ( 2 ): “ A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications .”
“ Mediation communication ” includes “ an oral or written statement , or nonverbal conduct intended to make an assertion ,” F . S . 44.403 ( 1 ), even a nod or shake of the head intended to convey “ yes ” or “ no .”
But it doesn ’ t include a participant ’ s observation of what happens , like watching a party leave in the middle of mediation .
A mediator " is responsible for … preserving confidentiality …” Florida Rules for Certified and Court-Appointed Mediators 10.300
" A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to be all parties .” Florida Rules for Certified and Court-Appointed Mediators Rule 10.360 . And “ communications made during the process are confidential , except where disclosure is required or permitted by law . FRCCM Rule 10.420 ( a )( 3 ).”
Now , the exceptions :
- Committing a crime or threatening violence during mediation is specifically excluded from the privilege . F . S . Section 44.403 ( 1 ). Per F . S . 44.405 ( 4 )( a )( 2 ), a communication “ willfully used to plan a crime , commit or attempt to commit a crime , conceal ongoing criminal activity , or threaten violence ” is excluded . So threats of violence can be reported . - Signed mediation written agreements . F . S . 44.405 ( 4 )( a ) - Waiver . F . S . 44.405 ( 4 )( a )( 1 )
- A communication requiring “ a mandatory report under Florida ’ s protective services laws . F . S . 44.405 ( 4 )( a )( 3 ) - A communication “ offered to report , prove , or disprove professional malpractice occurring during the mediation , solely for the purpose of the professional malpractice proceeding .” F . S . 44.405 ( 4 )( a )( 4 ). - A communication “ offered for the limited purpose of establishing or refuting the voiding or reforming of a settlement agreement ...” F . S . 44.405 ( 4 )( a )( 5 ) - A communication “ offered to report , prove , or disprove professional misconduct occurring during the mediation , solely for the internal use of the body conducting the investigation of the conduct .” F . S . 44.405 ( 4 ) ( a )( 6 ).
Whether a mediator may disclose things occurring in a mediation over a party ’ s objection is quite fact-dependent .
Some examples :
1 . In private caucus , lawyer tells mediator his client has no authority to make any settlement offer , in any amount .
“ Communication ”? Yes . An oral statement by a participant ( lawyer ) to another mediation participant ( mediator ).
Made during mediation ? Yes . Do any exceptions apply ? No . So , is it privileged ? Yes .
2 . Mediator notices a party ’ s absence from the mediation , not through any “ communication ,” but because she sees them leave . Observations of what occurs ( or doesn ’ t ) are not “ mediation communications ,” therefore not privileged .
For a discussion of a mediator ’ s observations , versus mediation communications , see MEAC 2006-008 .
3 . In private caucus , party says he intends to physically attack the opposing party after the mediation concludes .
Privileged ? No , since it falls within the F . S . 44.405 ( 4 )( a )( 1 ) exception for communications “[ w ] illfully used to plan a crime , commit or attempt to commit a crime , conceal ongoing criminal activity , or threaten violence .”
4 . Insurance adjuster informs mediator that her most recent offer constitutes the extent of her settlement authority , and that she is unable to make any higher offer . Communication ? Yes .
Made during mediation ? Yes .
Do any exceptions apply ? No . MEAC Opinion 2006-003 states that while a mediator may report a party ’ s or representative ’ s failure to physically appear , it would be an ethical violation to report that a party or insurance representative who did appear “ did not have full settlement authority .”
5 . Counsel for one mediation party feels the opposing party ’ s offer constitutes “ bad faith .” She files a motion for sanctions and subpoenas mediator to testify .
Is opposing party ’ s offer a communication ? Yes .
Made during mediation ? Yes .
Do any exceptions apply ? No . The trial court should bar mediator ’ s testimony . And note – there is no “ good faith ” requirement in mediations anyway . See , Avril v . Civilmar , 605 So . 2d 988 ( Fla . 4th DCA 1992 ).
Florida Mediator Ethics Advisory Committee Opinion 99-012B notes that “ if subpoenaed , a mediator should either file a motion for protective order , or notify the judge in accordance with local procedures , that the mediator is statutorily required to maintain the confidentiality of mediation proceedings .” But it concludes that if ordered to testify " the better approach would be to follow the court order ,” citing a prior MEAC ruling , MQAP Opinion 96-005 .
The opinion further explains that if this court order gets reversed after mediator ’ s testimony , the aggrieved party can always seek to have the testimony stricken .
After a long career at Shutts & Bowen LLP as a commercial / real estate litigator , Mr . LaSorte is now exclusively a mediator ( 500 + cases ) and expert witness . ( 561 ) 286- 7994 ; Al @ LaSorteMediation . com . Alfred A . LaSorte , Jr ., P . A . d / b / a LaSorte Mediation . ( www . LaSorteMediation . com )
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /
PBCBA BAR BULLETIN 6