PBCBA BAR BULLETINS pbcba_bulletin_February 2019 | Page 6

ADR C o r n e r Not Everything Said Or Done is Privileged At Mediation WILLIAM J. CEA Mediation conducted pursuant to Chapter 44, Florida Statutes, mandates confidentiality and privilege. However, like most rules, there are exceptions. It is important to recognize that confidentiality and privilege are not absolute. The Florida Rules for Certified and Court-Appointed Mediators, Rule 10.200, et. seq. (“Rules”) and Chapter 44, Florida Statutes, provide exceptions that counsel and mediation participants should be aware of. The general rule, as set forth at Section 44.405, F.S., is that all mediation communications shall be confidential. Further, 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. Section 44.403(1), F.S., defines “mediation communication” to mean an “oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.” Thus, criminal activity during a mediation is by definition not privileged. Additionally, Section 44.405(4),F.S., lists exceptions to statutory confidentiality and privilege. Specifically, no confidentiality or privilege attaches to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication: 1. For which the confidentiality or privilege against disclosure has been waived by all parties; 2. That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence; 3. That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report; 4. Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding; 5. Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation; or 6. 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. The Rules also acknowledge that exceptions exist. Rule 10.360 states, in pertinent part: “A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties.” Additionally, Rule 10.650, Concurrent Standards, states: “Other ethical standards to which a mediator may be professionally bound are not abrogated by these rules. In the course of performing mediation services, however, these rules prevail over any conflicting ethical standards to which a mediator may otherwise be bound.” While it may seem obvious that criminal conduct is not confidential or privileged, attorneys need to bear in mind that professional misconduct may be reported. The above cited provisions of Florida Statutes and the Rules also raise the question of whether a mediator is required to report attorney professional misconduct during a mediation to the Florida Bar. Advisory Opinion, MEAC 2011-003, issued by the Florida Mediator Ethics Advisory Committee states, in pertinent part: “The confidentiality of mediation is not intended to cloak or provide protection for the professional misconduct of any party or participant during the mediation process. Chapter 44 and rule 10.360(a)…..allow for the reporting of such without violating mediation confidentiality”. Thus, it is important for counsel to explain to clients that Florida law provides mediation communications are confidential and privileged. However, confidentiality and privilege are not absolute and both parties and counsel need to understand the limits. PBCBA BAR BULLETIN 6 Equally important is the need to avoid putting the mediator or opposing counsel in a position of feeling duty bound to report misconduct or other non-privileged communications as referenced above. As we all know, the Florida Supreme Court is increasingly concerned with standards of professionalism and professional misconduct. Participants or counsel may believe that they can use mediation confidentiality and privilege as a mechanism to engage in strong arm tactics, including conduct otherwise prohibited by the Rules Regulating The Florida Bar. For example, Rule 4-8.4 of the Rules of Professional Conduct sets forth conduct such as harassing behavior that is prohibited. Further, Rule 4-8.3 requires a lawyer to report certain misconduct. The Comment to Rule 4-8.3 also states that: “Generally, Florida statutes provide that information gained through a “mediation communication” is privileged and confidential, including information which discloses professional misconduct occurring outside the mediation. However, professional misconduct occurring during the mediation is not privileged or confidential under Florida statutes.” So the takeaway is continue to use mediation as a forum to exchange information, overcome barriers and obstacles and resolve cases. On the other hand, don’t lose sight of your professional obligations just because you may be in a less formal setting that is, generally, covered by confidentiality and privilege. William J. Cea, Esq. is a Shareholder with Becker & Poliakoff, P.A., and is based in the firm’s West Palm Beach Office. Mr. Cea is a Board Certified Construction Attorney and Certified Circuit Court Mediator. Mr. Cea concentrates his practice in the areas of construction defects litigation, public procurement and mediation. Mr. Cea has lectured for a number of organizations, on topics such as mediation and construction law, including The Florida Bar, the Florida Association of Public Procurement Officials, Inc., the Construction Owners Association of America, Nova Law School, and the Palm Beach County Bar Association. He may be reached at [phone], or via email @ [email protected]. For additional ADR tips and resources, go to http://www. palmbeachbar.org/adr-2