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The Mediation Privilege in Florida: What Every Litigator Should Know
KIMBERLY M. KOSTUN
Mediation is an integral part of civil litigation in Florida. Yet even experienced litigators can easily overlook the scope and practical importance of mediation confidentiality and privilege. Florida’ s Mediation Confidentiality and Privilege Act, Chapter 44, Florida Statutes, provides significant protections designed to encourage candid settlement discussions. Understanding those protections is essential when preparing a client for mediation and when litigating after mediation is unsuccessful.
What is protected?
Florida Statute § 44.405 generally provides that mediation communications are confidential and privileged. Subject to statutory exceptions, participants may not disclose or be compelled to disclose mediation communications.
The privilege creates a secure environment in which parties can evaluate risk, acknowledge weaknesses, explore settlement options, and make concessions without fearing that those statements will later be used against them.
For counsel, however, the critical distinction is between a mediation communication and an underlying fact. Mediation does not make otherwise discoverable evidence privileged. A contract, medical record, photograph, payment record, or other related document does not become privileged merely because it is presented or discussed during mediation. Likewise, an underlying fact does not become protected simply because it is discussed with the mediator. The privilege protects communications not the underlying information itself.
Settlement negotiations are not admissions
A common post-mediation mistake is attempting to use statements made during negotiations as evidence in the litigation. After an unsuccessful mediation, a party may argue that opposing counsel“ admitted liability,” acknowledged substantial damages, or made a settlement offer demonstrating the value of the case.
Counsel should proceed cautiously. Settlement positions and negotiations are precisely the types of communications the mediation privilege is intended to protect. The fact that a statement may be relevant to litigation does not necessarily make it admissible.
If a party needs to establish that a payment was made, a contract was breached, or damages were incurred, counsel should rely upon admissible evidence whenever possible. This is particularly important at summary judgment. Mediation should not become an evidentiary shortcut to establish an admission or eliminate a factual dispute.
The mediation privilege is not attorney client privilege
The mediation privilege should not be confused with the attorney-client privilege. Attorney-client privilege protects qualifying confidential communications between attorney and client made for the purpose of obtaining or providing legal advice. Mediation confidentiality addresses communications occurring within the mediation process and may encompass communications among parties, counsel, mediators, insurers, corporate representatives, and other authorized participants. Counsel should therefore analyze the nature and circumstances of the communication rather than simply labeling it“ privileged.”
Confidentiality and waiver
Counsel should avoid telling clients that everything said during mediation is absolutely confidential. Florida’ s statutory scheme contains exceptions that may permit or require disclosure. Post mediation communications also require care. There is a significant difference between stating that a case“ did not resolve at mediation” and recounting specific offers, concessions, or statements made during the process. Unnecessary repetition of mediation discussions in emails, pleadings, or reports can create confidentiality issues.
Likewise, waiver requires careful analysis. A limited disclosure does not necessarily open the door to every communication made during mediation. Counsel should identify precisely what was disclosed, by whom, to whom, and under what circumstances, and then analyze the applicable statutory provisions.
The Mediator is not a litigation witness
The mediator’ s exclusive role is to facilitate resolution, not create evidence for either side. Attempts to obtain testimony concerning mediation can undermine the process the privilege is designed to protect. Absent a statutory exception permitting disclosure, counsel should be reluctant to place the mediator in the position of becoming a fact witness concerning the parties’ negotiations.
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