ADR CORNER
ADR CORNER
KIMBERLY M. KOSTUN
The Mediation Privilege in Florida: What Every Litigator Should Know( Continued)
Practical guidance for litigators
The best way to avoid mediation privilege problems is to treat mediation as a protected settlement process, not an evidentiary proceeding.
Before mediation, counsel should:
1. Identify participants and explain confidentiality and its limitations.
2. Distinguish protected mediation communications from underlying facts and discoverable evidence.
Kimberly M. Kostun, Esq. is partner with Guffey & Kostun Law Group, LLP with offices in North Palm Beach, Boca Raton, Boynton Beach and Pennsylvania. Ms. Kostun and her partner Gordon Dieterle, Esq. are Florida Supreme Court Certified Circuit and County Court Mediators and can be reached at KKostun @ guffeykostunlaw. com or Gdieterle @ guffeykostunlaw. com or by phone at 561-734-5552.
For additional ADR tips and resources, go to www. palmbeachbar. org / alternative-disputeresolution-committee.
3. Develop the evidentiary record through discovery before mediation.
4. Prepare the client for candid negotiation.
5. Avoid unnecessary disclosure of mediation communications afterward.
6. Rely on independently admissible evidence when litigating facts discussed during mediation.
7. Evaluate statutory exceptions and potential waiver before seeking or making disclosure.
Conclusion
For Florida litigators, the mediation privilege is more than a rule prohibiting disclosure of settlement offers. It is a statutory protection designed to encourage candid negotiation, facilitate resolution and preserve the integrity of the mediation process.
When attorneys understand the boundaries of mediation privilege, they protect not only their clients’ interests but also the effectiveness and credibility of mediation as a central component of Florida’ s civil justice and alternative dispute resolution system.
Upchurch Watson White & Max MEDIATION GROUP
Rafael Roca rroca @ uww-adr. com Fluent in English & Spanish
proudly welcomes
Mediator / Arbitrator Rafael J. Roca, a new member of our distinguished panel.
MEDIATION | ARBITRATION | SPECIAL MASTERS Successfully Resolving Conflicts in Florida, Alabama & Nationwide Since 1988 561-533-7553 | 800-264-2622 WWW. UWW-ADR. COM
PBCBA BAR BULLETIN 8