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Mediator Ethics Advisory Opinions
Summaries from 1994 - Present

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1994

Summary of Opinion

Current Cites

94-001

With consent of counsel and parties and stipulation of confidentiality, contact with parties after mediation in an additional effort to resolve case is permissible.

Rules 10.200, 10.220, 10.360(a); Statutes 44.405(2) and 90.408

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.
94-002 Serving as co-counsel following service as mediator for the same case is not permitted.

Rules 10.200, 10.330, 10.340, 10.360, 10.620

Note: Changes to the rules in 2006 may impact this opinion.
94-003 Serving as counsel following service as mediator for the same case is not permitted.

Rules 10.340(d), 10.420(c), 10.620; 1.730(b); 12.740(f)(1)

1995

Summary of Opinion

Current Cites

95-001

If a mediator is not paid for services, the mediator may seek payment in any lawful manner.

Rules 10.380; 1.720(g)

95-002

It is improper for a mediator to provide legal advice even if framed as a question. Information on interest rates fall into the category of advice on legal options.

Rules 10.220, 10.230, 10.310(b), 10.330, 10.370(a) - (b)

Note: Changes to the rules in 2000 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.

95-004

Records retention/disposal requirements are not ethical in nature and therefore not within the jurisdiction of the MEAC.

Rules 10.360(c), 10.380(d)

95-005

A mediator who is informed in caucus of hidden assets should withdraw from the mediation unless disclosure is made. If a party “misses” a cause of action, a mediator is precluded from giving legal advice to point this out. The ethical rules apply to non-certified mediators who mediate court-ordered cases.   

Rules 10.200, 10.310(c), 10.330, 10.360(b), 10.370(a) - (b), 10.420(b)
Note: Changes to the rules in 2000 may impact this opinion.

95-006

It is inappropriate for a certified mediator to use the State Seal or Seal of the Supreme Court of Florida on any advertisements without express permission.

Rule 10.520; Section 15.03, Florida Statutes

95-007

It is unethical to advertise that a mediator will provide a “dispassionate evaluation.”

Rule 10.610; Section 44.1011, Florida Statutes

95-008

A mediator who agrees to perform services for a specified fee via court-order, must do so unless relieved of that duty by the court.

Rules 10.200, 10.340(d), 10.380, 10.520, 10.620; 1.720(g)
Note: Changes to the rules in 2000 may impact this opinion.

95-009

When mediation is court-ordered, the parties are required to appear at mediation. If they leave prior to the mediator completing an opening statement, the mediator may report non-appearance. After completion of the opening statement, if the parties choose not to stay at mediation, the mediator may only report impasse to the court. No rule exists which requires a party to negotiate in “good faith.”
Note: Read MEAC Opinion 2006-003 as it has rescinded portions of MEAC 1995-009

Rules 10.420(a) and (b); 1.720(b) and (d), 1.730(a), 1.750(e); 8.290(l) and (o)(2);
12.740(d) and (f)
Note: Changes to the 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.

1996

Summary of Opinion

Current Cites

96-001

Case referral service involvement.

Rules 10.330, 10.340(b), 10.380(e), 10.610, 10.620 

96-002

Mediator should decline serving as a Special Master following mediating a case.

Rules 10.360, 10.620;
Section 44.405(2), Florida Statutes
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

96-003

A mediator may not inform a party of a “right to make a claim” for loss of consortium. A mediator may not ask why a claim is not being made, but should determine competency of the party to enter into negotiations and proceed without counsel.

Rules 10.310(a) - (b), 10.340(d), 10.370(a) - (b), 10.420(b)
Note: Changes to the rules in 2000 may impact this opinion.

96-004

A mediator is not prohibited from soliciting letters of reference from persons for whom s/he has served as a mediator. Evaluations are not categorically excluded from use in advertising so long as the advertising is truthful.

Rules 10.330(c), 10.360(c), 10.610, 10.690(c)

96-005

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

Rule 10.360(a);
Section 44.405(2), Florida Statutes
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

1997

Summary of Opinion

Current Cites

97-001

The panel believes that the mediator is not prohibited from having contact with either party, either before or after the mediation.

Rules 10.330(a), 1.720(e); 12.741(b)(5);
Opinion applicable for county, family and circuit. May not be to dependency.

97-002

An attorney-mediator may represent a party in a subsequent dissolution of marriage.

Rules 10.330(c), 10.340(d), 10.620
Note: Changes to the rules in 2000 may impact this opinion.

97-003

Mediating for parties who have been marriage counseling clients is permissible, if both request.

Rules 10.330, 10.340(b), 10.610, 10.620, 10.650,
Note: Changes to the rules in 2000 may impact this opinion.

97-004

A mediator should not mediate if an armed deputy is necessary.

Rules 10.360(a), 10.420(b);
Section 44.405(2), Florida Statutes
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

97-005

Notification of the terms of payment must be furnished to the parties within a reasonable period of time prior to the mediation.

Rules 10.310(b)-(c), 10.380(c)

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.

97-007

Using the mediation process to incur future business as a realtor is a violation of the rules.

Rule 10.330(c)

97-008

Producing a TV show with real parties in a live mediation is not a violation so long as the parties are informed of their right to confidentiality and waive it.

Rule 10.360;
Section 44.405(2), Florida Statutes
Note: Changes to the statute in 2004 and rules in 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);
Section 44.405(2), Florida Statutes;
MEAC 96-005
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

1998

Summary of Opinion

Current Cites

98-001

Sending follow-up letters with information on a mediator’s services sent after a mediator withdraws or report is filed with the court, does not violate the rules so long as it is done consistent with impartiality and advertising rule requirements.

Rule 10.330(c)
Note: Changes to the rules in 2000 may impact this opinion.

98-002

Retention of mediation records is not an ethical issue.

MEAC 95-004

98-003

There are no licensure requirements for mediators, the court may not appoint a corporation as a mediator, but may appoint an individual who is associated with a group.

Rules 10.100(b), 10.200, 10.520, 10.620; 1.720(f)

98-004

A mediator may disclose that s/he has mediated with an attorney, claims representatives, or other parties previously, but is not required to do so unless there is a “close personal relationship” or other circumstance specifically referenced in the rules.

Rules 10.330(b), 10.340(a)-(b)

98-005

When a meeting take place without the presence of the mediator, it is not a mediation.

Rules 10.420(b); 1.720(c), 1.720(d)

98-006

Pre-suit mediation agreements which name a specific individual as the exclusive mediator are suspect.

Rules 10.330, 10.340(a)-(b), 10.620;
MEAC 96-001

98-007

In a Bar Grievance Mediation conducted by a certified mediator, the resolution of a representative’s authority is necessary prior to proceeding with a mediation.  Mediation may continue if a valid durable power of attorney is in place, if not, the mediation should be canceled.

Rules 10.420(b); 1.720(b);
MEAC 95-002;
Rules Regulating the Florida Bar 3-8.1(i)
Note: Changes to the rules in 2000 may impact this opinion.

1999

Summary of Opinion

Current Cites

99-001

It is permissible for an attorney mediator to subsequently serve as an attorney for an individual in an unrelated case against a party who participated in a mediation with this mediator.

Rules 10.330(c), 10.620;
MEAC 97-002
 

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.

99-003

A mediator has discretion regarding providing his/her notes upon request of a party.

Rule 10.330(a)

99-004

With agreement of the parties, a non-lawyer may assist at a court-ordered mediation and participate in the negotiations.

Rules - none cited

99-005

The rules imply that any gift to court personnel is prohibited.

Rules 10.330(c), 10.530;
Section 112.148(6)(d), Florida Statutes
Note: Changes to the rules in 2000 may impact this opinion.

99-006

A mediator’s employment as a Deputy Clerk does not inherently cause ethical concerns.

Rules 10.330(a), 10.340, 10.620

99-007

A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases.

Rules 10.340(a)-(c)

99-008

Providing training to persons who are later parties to a mediation does not preclude a mediator from mediating so long as disclosure is made and parties request the mediator to serve.

Rules 10.340(a)-(c)

99-009

The mediation rules do not prohibit a full-time mediator employed by the county from mediating privately on his/her own time.

Rules 10.330, 10.340, 10.500, 10.620;
Ch. 112, Part III, Florida Statutes
Note: Changes to the rules in 2000 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 Statutes
Ch. 119, Florida Statutes
Note: Changes to the statute in 2004  may impact this opinion.

99-011

From the information provided, the panel finds nothing which would preclude a mediator from participating as mediator with the mediation services corporation referenced.

Rules 10.340, 10.380, 10.620
Note: Changes to the rules in 2000 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 Statute
MEAC 96-005
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

99-013

Letterhead which includes two names and the statement “Circuit Court Mediation” along with other designations where only one of the named persons are certified constitutes misleading advertising, and therefore, is violative of the rules.

Rule 10.610
Note: Changes to the rules in 2000 may impact this opinion.

2000

Summary of Opinion

Current Cites

2000-001

A mediator has an ethical obligation to allow a minimum of two observations of their mediations per year, even if certified in more than one area. With regards to the mentorship requirements, the term “observe” does not refer to co-mediation.

Rules 10.520, 10.690(b);
AOSC06-9 (Administrative Order Governing Certification of Mediators)
Note: Changes to the Administrative Order 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.

2000-003

Pursuant to the rules, the reason for cancellation or postponement should not be explained in the mediator’s report.

Rules 10.310(d), 10.360(a); 1.730(a), 8.290(o)(2), 12.740(f)(3)
Note: Changes to the rules in 2006 may impact this opinion.

2000-004

The rules adopted in April 2000 do not impose any additional requirements upon the mediator with regard to self-determination, since the addition of the word “protect” to the rule 10.310(a) does not constitute a substantive change.

Rules 10.310, 10.060(a) and (b)

2000-005

A mediator should not continue to mediate when a party objects to that mediator.  However, if all parties agree and it is feasible, such mediation may continue, under certain circumstances, as a co-mediation, a bifurcated proceeding, or in some other acceptable format.

Rules 10.300, 10.330(a), 10.340, 10.620; 1.720(b);
MEAC 95-009, 99-008

2000-006

A mediator is not precluded from mediating as case in which one of the parties previously attended a parenting course taught by the mediator.

Rules 10.330, 10.340(a) and (c);
MEAC 97-003, 99-008

2000-007

The appointment of a non-certified mediator violates procedural rules.

Rules 10.200, 10.330(a), 10.340(a) and (c), 10.620; 1.720(f)(1)(B); 8.290(e)(2)(B);
12.741(b)(6)(A)(ii)

2000-008

A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases.

Rules 10.340(a)-(c);
MEAC 99-007

2000-009

Assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.

Rules 10.330(c), 10.370, 10.380(c) and 10.650;
Opinion 86-8, Florida Bar Ethics Opinions;
Rule 10-2.1(a), Rules Regulating the Florida Bar 

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.

2001

Summary of Opinion

Current Cites

2001-001

A mediator may not compensate another for merely making a referral, but may compensate a colleague or mediation service for actual work performed by that colleague or mediation service.

Rules 10.380(c)(3), 10.380(e)

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.

2001-003

Assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.

MEAC 2000-009

2001-004

(a) and (b) A mediator should declare an impasse upon request of a party, but need not immediately cancel a mediation because a party calls an attorney or other “extra-mediation source or advisor.”
(c) A mediator should not report to the court that a party was not mediating in good faith since there is no requirement that a party mediate in good faith. A mediator’s report should be limited to only those matters authorized by applicable court rule.
(d) The actions of an attorney to a party to mediation are subject to the ethical jurisdiction of the Florida Bar not the MEAC. In addition, a mediator should not voluntarily testify or disclose confidential communications absent a waiver.

Rules 10.220, 10.310, 10.420(b)(3); 1.720(b), 1.730(a), 8.290(l), 8.290(o)(2), 12.740(d) and (f);
MEAC 95-003, 95-009, 96-005, 99-012
Note: Changes to the statute in 2004 and to the rules and MEAC 96-005 & 99-01 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.  

Rules 10.360(a), 10.650;
Rule 3-8.1(i), Rules Regulating the Florida Bar;
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.

2001-006

Letters to attorneys and other parties advertising one’s services are permissible.
Logo embossed items of minimal value are permissible forms of advertising. Items of greater value may create the appearance of mediator bias, and therefore, should be avoided.
Lunches and golf outings paid for by the mediator for the purpose of developing goodwill and attracting future clients are inappropriate activities.

Rules 10.330(c), 10.340, 10.610, 10.620, Committee Notes to rule 10.340

2001-007

It is not appropriate for an arbitrary time limit to be imposed for mediation services.  While a judge may interrupt the mediation and request that it be concluded, impasse should not be declared if the parties have not reached impasse.

Rules 10.230, 10.310(a), 10.420(b), 10.430, 10.500

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); MEAC 96-005, 99-012, 2001-002, 2001-005;
Sections 44.405(2), 44.201(5), Florida Statutes
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

2001-009

A.  Referring cases to and receiving referrals from a firm for a fee may constitute a conflict necessitating the mediator’s withdrawal.
B.  A mediator must disclose former associations, such as previous employment, but is not be required to withdraw unless such past relationship constitutes a clear conflict.

Rules 10.330(a), 10.340(a)-(c), Committee Note to rule 10.340

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 “non appearance” 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(b), 1.720(b), 1.750(e), 7.090(f)
MEAC 99-002
Note: Changes to the rules in 2006 may impact this opinion.

2001-011

Under these circumstances, it would be ethically inappropriate to become counsel of record for either of the parties’ in their pending divorce.

Rules 10.310, 10.330(a) and (c), 10.360(a), 10.370(b) - (c)
MEAC 94-003, 97-009
Note: Changes to the rules in 2006 may impact this opinion.

2002

Summary of Opinion

Current Cites

2002-001

The requirements of 1.720(b)(1), Florida Rules of Civil Procedure, regarding appearances cannot be satisfied by the physical presence of the party’s attorney or in-house counsel of an entity without the named party.

Rules 10.420(b)(3), 10.420(b)(4), 1.720(b)
MEAC 99-002 (a)
Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)

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.

2002-003

The generic designation “certified mediator” is inherently misleading and therefore in violation of rule 10.610

Rule 10.610
MEAC 99-013

2002-004

Sponsoring a sports tournament which is open to the public or holding a silent auction to raise monies for charitable causes for the purpose of advertising (incorporating the name of a mediation firm) are permissible if consistent with rules 10.330, 10.340, 10.610 and 10.620.

Rules 10.330, 10.340, 10.610 and 10.620
MEAC 2001-006

2002-005

Serving as the mediator for a case involving a party to mediation against whom your law firm has cases pending creates a clear conflict necessitating the withdrawal of the mediator, regardless of the express agreement of the parties

Rule 10.340
MEAC 2001-009

2003

Summary of Opinion

Current Cites

2003-001

A mediator shall adjourn or terminate a workers’ compensation mediation where there is a complete absence of bargaining ability. This determination must be made on a case by case basis. Telephonic mediation  does not automatically render a mediation inappropriate. A mediator should be mindful of the extent of the relationship between the mediator and a particular carrier or adjuster which must, at a minimum, be disclosed and may become a clear conflict of interest which is not waivable.

Rules 10.200, 10.310, 10.410, 10.420(b)(3) - (b)(4), 10.330(b), 10.340(b) - (c), 10.520 and 10.650; 1.720
Sections 440.25(3)(a)2 and 44.106, Florida Statutes
Rules 4.300(b) and 4.361(d), Florida Rules of Workers’ Compensation Procedure
Rule 60Q-6.110(3), Florida Administrative Code

2003-002

A certified mediator does not have an ethical obligation to advise a party without an attorney in a family mediation where an agreement in signed to take the signed agreement to an attorney.

Rules 10.310(a), 10.330(a), 10.370(b), 10.410 and 10.520
Kalof v. Kalof, 28 Fla. L. Weekly D678 (Fla. 3d DCA March 12, 2003)

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.

2003-004

A. By contracting with only one party in a dispute, the mediator may have violated the general impartiality requirement contained in rule 10.330(a).
B. Initiating the mediation process without the required judicial involvement is a violation of the ethical rules.
C. Referencing sanctions for failure to participate in a mediation in a case which has not yet been court-ordered to mediation, is a violation of the ethical rules.
D. A mediator must comply with ethical and procedural rules in relation to charging fees for mediation. Failure to do so would be an ethical violation.

Rules 10.310(b), 10.330(a), 10.380, 10.520, 10.610 and 10.620; 12.740 and 12.741
MEAC 96-001 and 98-006

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.

2003-006

Having once acted as an advocate for one party, it would be unethical for a mediator to subsequently conduct a mediation, irrespective of waivers from all parties, since there would be a clear conflict of interest pursuant to rule 10.340(a).

Rule 10.340(a) and Committee Notes
MEAC 94-002, 94-003 and 99-001

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.

2003-008

There is no ethical violation for a mediator to complete a statistical form so long as the mediator does not reveal any confidential communications from the mediation. A mediator has an ethical obligation to provide information relating to outcome.

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.

2003-009

A mediator has no affirmative duty at the beginning of mediation to inquire about a representative’s authority, since there is no specific rule requiring such.  While it would be good practice for a mediator to pursue the issue of whether full authority exists, ultimately it is a matter of discretion whether, when, and to what extent the mediator pursues the issue.

Rule 10.420(a)
MEAC 99-002
Note: Changes to the rules in 2006 may impact this opinion.

2003-010

A. Pursuant to family court rules, a mediator is obligated to see that a mediated agreement is reduced to writing, but is not obligated to write the agreement.  This rule does not conflict with the statutory provision requiring the mediator to prepare a consent order, since this provision merely requires such agreement to be incorporated into a consent order prepared by the mediator.
B.  While a mediator cannot compel parties who have reached an agreement to put such agreement in writing and sign it immediately, the mediator does have the obligation to “discuss with the parties and counsel the process for formalization and implementation of the agreement,” and to see that the agreement is “memorialized appropriately.”

Rules 10.420, 10.520; 12.740
Section 61.183, Florida Statutes
MEAC 95-009

2003-011

All of the Standards of Professional Conduct for Mediators found in Part II, Florida Rules for Certified and Court-Appointed Mediators, are applicable to all types of certified and court-appointed mediators.  There is no exception for county mediators in relation to the provision prohibiting mediators from predicting how the court will decide a case.

Rules 10.200, 10.310. 10.330 and 10.370(c)

2004

Summary of Opinion

Current Cites

2004-001

In regard to a mediator advertisement with the reference to being a “judge”, the use of the term “judge” alone may confuse or mislead the public in violation of rule 10.610. The mediator may need to include clarifying information in order for such practice to be permissible.

Rule 10.610
MEAC 2002-003 and 99-013

2004-002

A certified mediator must allow “sufficient” and “appropriate” time for completing mediation, and should not double or triple book mediations.
           

Rules 10.300, 10.310(a), 10.380(b)(1), 10.400. 10.420, 10.430, 10.600, 10.620
Rule 4.361, Florida Rules of Workers’ Compensation Procedure
MEAC 2001-001 and 2003-001

2004-003

The Florida Rules for Certified and Court-Appointed Mediators apply to any mediation conducted by a Florida Supreme Court certified mediator and to any court-ordered mediation, even if conducted by a non-certified mediator by agreement of the parties.

Rules 10.110(b), 10.200, 10.610, 10.620, 10.650

2004-004

A.  A mediator may record or memorialize the parties’ agreement but, it is not the mediator’s role to make substantive decisions for the parties.  In recording the parties’ agreement, a mediator must observe the ethical rules regarding impartiality, professional advice, and other professions’ standards, such as the unauthorized practice of law.
B. While a mediator may assist the parties in completing authorized forms, a mediator should stop short of “drafting” the Petition for Dissolution, Answer, or other pleadings. 
C.  Drafting pleadings and providing advice on how to file them would be an inappropriate additional service not directly related to the mediation process.
D.  It is inappropriate for a mediator to represent either party in a dissolution proceeding or in any matter arising out of the subject mediation.
E.  The Committee declines to answer the question of whether appearing at a final hearing and eliciting “basic information” is the practice of law.  However, such activity is inappropriate for a mediator.

Rules 10.330(a); 10.340(d); 10.420(c); 10.620; 10.650;
12.740(f)(1)
Section 44.404(1), Florida Statutes
MEAC 94-003, 2000-009, 2001-003

2004-005

Providing a party, upon request, with information which could have been provided at an earlier point in the mediation process does not constitute solicitation of services and thus is not a violation of these rules.  

Rules 10.330(a) and (c), 10.340, 10.610
MEAC 97-007

2004-006

When a mediator receives a court order in advance of a mediation, which contains provisions which are contrary to the mediator’s role and requires the mediator to act in a manner that is inconsistent with the mediator’s ethical rules, the mediator should decline participation in the mediation.

 

Rules 10.200, 10.220, 10.310, 10.360(a), 10.500, 10.510, and 10.520; 1.730(a), 8.290(o)(2), 12.740(f)(3);
Sections 44.401 – 44.406, Florida Statutes
MEAC 95-009, 96-005, 99-012, 2001-004
Avril v. Civilmar, 605 So 2d 988 (Fla. 4th DCA 1992)
Evans v. State, 603 So 2d 15 (Fla. 5th DCA 1992)
Chabotte v. Chabotte, 707 So 2d 923 (Fla. 4th DCA 1998)
Note: Changes to the rules in 2006 may impact this opinion.

2004-007

MEAC Opinions are based on the facts presented in the question.  Prior representation of a party to a mediation, which involved different parties, a different case or different subject matter would be subject to disclosure and may be waivable based on a case by case determination. 

Rule 10.340
MEAC 2003-006

2004-008

Mediating a case your daughter is personally handling would be a nonwaivable, clear conflict, while her firm’s case with which she had no involvement, is a conflict of interest which may be waivable after disclosure.

Rules 10.330(a) and 10.340(a)-(c)

2004-009

While the Committee does not have jurisdiction to apply the Workers’ Compensation statute to the specific facts in your question, the Florida Rules for Certified and Court-Appointed Mediators, to which all certified mediators must adhere, makes clear that if the mediator believes that the mediation entails fraud, duress, the absence of bargaining ability or unconscionability, the mediator is required to terminate the mediation. 

Rules 10.200, 10.410, and 10.420(b)(4),
In Re: Florida Rules of Workers’ Compensation Procedure, 891 So2d 474 (Fla. 2004)
Rule 4.361(d), Florida Rules of Workers’ Compensation Procedure (repealed December 2, 2004)

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.

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.

2004-012

Ethically, a certified mediator is required to preserve the quality of the profession, to maintain forthright business practices, Rule 10.600, not provide any service that would compromise the mediator’s integrity or impartiality, Rule 10.620, and should support the advancement of mediation by participating in public education, Rule 10.690(c).  Consistent with those provisions, it is permissive for the charges for CME to be set by competitive market forces.

Rules 10.600, 10.620, 10.690(c), 10.900(a)
AOSC06-9 (Administrative Order Governing Certification of Mediators)
Note: Changes to the Administrative Order in 2006 may impact this opinion.

2005

Summary of Opinion

Current Cites

2005-001

The HOA Program billing procedures do not present any per se ethical concerns related to fees, expenses, or impartiality for a Florida Supreme Court certified mediator who participates in this program so long as the fees and their allocation between the parties are disclosed in advance of the mediation to the parties or their counsel, and the parties are given the option of agreeing to that arrangement or negotiating a different one. 

Rules 10.330, 10.380, and 10.520;
Section 720.311, Florida Statutes
61B-82.004, Florida Administrative Code

2005-002

While your position as a judicial assistant does not automatically prohibit you from mediating, you are still obligated not to mediate a matter that “presents a clear or undisclosed conflict of interest,” Rule 10.340(a).  You are required to make this determination on a case by case basis.

Rule 10.340(a)
MEAC 99-006

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

2005-004

It is inappropriate for a mediator to represent either one party or both parties in any dissolution proceeding or in any matter arising out of the subject mediation.   There is no ethical obligation under the Florida Rules for Certified and Court-Appointed Mediators for a mediator to report allegations of ethical violations by another mediator.

Rule 10.340(d)
MEAC 94-003 and 2004-004

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) - (c), 10.410, 10.810(b) - (c), 10.900(a), Committee Notes to rule 10.340
Sections 44.401 – 44.406, Florida Statutes

2005-006

A mediator (who is also an attorney) engaged in an ongoing legal relationship with a third party administrator must not serve as a mediator in cases involving the third party administrator because it is a clear, nonwaivable conflict of interest.  A mediator (who is also an attorney) may serve in cases involving a reinsurer, even if some of the mediator’s legal clients utilize the same re-insurer, if the relationship is disclosed and the parties waive any potential conflict because such a relationship is not a clear conflict of interest.  

Rules 10.330, 10.340, and 10.620
MEAC 2003-006 and 2004-007

2005-007

A and C: If a party is requesting that the mediation be rescheduled for “good cause,” the mediation should be rescheduled to a mutually convenient time consistent with rule 10.330(a).  If the party is objecting to attending mediation, the mediator cannot compel attendance, however, the party should be advised that pursuant to rule 12.741(b)(2), the party may be subject to sanctions by the court for “nonappearance.”
B: A report to the court regarding nonappearance should not include any reason for the nonappearance.
D: A date for mediation may be set without the advance agreement of all parties, but then any party would be permitted to request that it be rescheduled.
E: A mediator may report non-appearance at a mediation if the mediator gave the non-appearing party due notice of the date and time for the mediation session and good cause was not shown for rescheduling.

Rules 10.310, 10.330(a) and 10.520; 1.720(f), 12.740(f) and 12.741(b)(6), 8.290(e)
MEAC 2000-003

2006

Summary of Opinion

Current Cites

2006-001

If the quotation provided is the complete advertisement and the telephone number relates to a person (or company) that does provide mediation services[“Got Conflict…Mediate, Divorce through mediation contested or uncontested. Call 555-5555”], it does not violate the mediator’s ethical standard for advertising.  However, if the advertising mediator is not competent to mediate the cases advertised, or if there were additional text which was false or misleading, the advertisement would violate rule 10.610.

Rules 10.100(e), 10.370, 10.610, and 10.640; 1.720(f), 8.290(e) & 12.741(b)(6)
MEAC 99-013, 2000-004,  2000-009

2006-002

Given the judge’s intervention, the mediator must carefully monitor the parties’ participation in the mediation to ascertain the parties’ ability to exercise self-determination and must be prepared to terminate the mediation if any party is unable or unwilling to participate meaningfully in the process.  A mediator is not relieved of ethical responsibilities by writing the “agreement” up as a “scrivener.”

Rules 10.220, 10.230, 10.300, 10.310(d), 10.420 (a) & (b), 10.900
Section 44.404(1)(b), Florida Statutes
Chabotte v. Chabotte, 707 So.2d 923 (Fla. 4th DCA 1998)
Note: Changes to the rules in 2006 may impact this opinion.

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

2006-004

A certified mediator is subject to a good moral character requirement and is prohibited from performing any act which would compromise the mediator’s integrity; however, there is no general prohibition regarding a mediator exhibiting behavior “unbecoming” a mediator.  In addition, the actions of an attorney or a party in a mediation, cannot be judged as if they were those of a mediator.

Rules 10.110, 10.310(d), 10.420(b) and 10.620

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  

2006-006

A mediator is obligated to advise a party of the right to seek counsel, if the mediator believes that the party does not understand or appreciate how an agreement may adversely affect the party’s legal rights or obligations, but is prohibited from giving "a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issues."

Rules 10.330, 10.310(a), and 10.370

2006-007

A.  While a mediator may facilitate discussion on the subject between the parties, the mediator may not “dictate” to the parties who attends their mediation. 
B.  The appropriate procedure would be for the nonparty participants to be told that they are also bound by the confidentiality requirements in statute and rule. 
C.  Although a mediator would not commit a direct violation of confidentiality by suggesting that a party, without the consent of all parties, discuss mediation communications with someone who does not attend the mediation, it is nonetheless unethical to do so because it could lead to a breach of confidentiality by another.

Rules 10.230, 10.310(a), 10.360(a), and 10.520,
Sections 44.403(1) and (2), 44.405(1) and 44.405(4)(a), Florida Statutes

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

 

2007

Summary of Opinion

Current Cites

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)

2007-002

A.  It would not be appropriate to routinely attach the mediated settlement agreement to a circuit civil case in light of the requirements of rule 1.730(b), Florida Rules of Civil Procedure.
B.  If one party objects, the agreement can not be attached.
C.  The Committee declines to answer this question since it asks for an opinion on the behavior of someone other than a certified or court-appointed mediator.

Rules 1.730(b) and 10.520,
Section 44.405(4)(a), Florida Statutes

2007-003

Conducting a second mediation with only three of the original four parties to a prior mediation agreement (the fourth party is not aware of the second mediation), which was based on the occurrence of a contingent event, prior to the deadline for the contingency to have occurred, would be inconsistent with your ethical obligations.

Rules 10.310, 10.330(a), and 10.620, Florida Rules for Certified and Court-Appointed Mediators
Committee Note to Rule 10.330

2007-004

Following a judicial requirement limiting the participants in the mediation would not require the mediator to commit an ethical violation and therefore may be complied with without conflicting with the opinion rendered in MEAC 2006-007. 

Rules 10.310(a), 10.500 and 10.520
MEAC Opinions 2001-007, 2003-007, 2003-008, 2004-006, 2006-002 and 2006-007

2007-005

It is not ethically proper to prepare retirement orders after having served as mediator for the case regardless of whether the parties have waived any conflict of interest.

Rules 10.340(d) and 10.620
MEAC Opinions 2004-004, and 2005-004

2007-006

A mediator who was a former judge may include the referenced information in marketing material if the information is accurate and honest and is not false or misleading.

Rule 10.610
MEAC Opinions 1999-013, 2002-003, and 2004-001

2008

Summary of Opinion

Current Cites

2008-001

A. It is ethically inappropriate for a mediator to make the determination as to whether a party has complied with a judge’s discovery order.
B. It would be inappropriate for a mediator to cancel mediation merely because of the assertion that one party has not complied with a discovery order.
C. Since it is not appropriate for the mediator to make the determination to cancel the mediation, the mediator would not be in a position of filing a report with the judge stating that the mediator did so. 
D. This question is beyond the jurisdiction of the MEAC; however, care should be taken to ensure that the unit does not provide any service that would cause mediators to compromise their integrity or impartiality.

Rules 10.230,10.310, 10.330(a),10.360, 10.370(c), 10.420(b), 10.500, 10.620, and 10.900,
Committee Note to rule 10.310,
Rule 1.730(a), Rule 8.290(o)(2),
Rule 12.740(f)(3),
Section 44.401- Section 44.406, Florida Statutes
MEAC Opinions 2000-003 and 2006-003

2008-002

Although the rules do not explicitly contain a prohibition against asking the question you pose, a mediator should not engage in such conduct. A representative of a credit card company overhearing a mediator telling an opposing party to contact a member of Congress regarding interest rates may have some (legitimate) concerns regarding the mediator’s impartiality in the mediation which just concluded.  These concerns would also extend to any subsequent mediations that the mediator may conduct with that representative.

Rules 10.330, 10.340(a), Committee Notes to rule 10.330

2008-003

A mediator is not prohibited from including accurate information in marketing material so long as it is not misleading; therefore, the mediator may use the information and/or logo, if it is clear that the rating relates to the attorney-mediator’s law practice (as opposed to his/her mediation practice). 

Rule 10.610
MEAC Opinions 2004-001 and 2007-006

2008-004

While the MEAC is unable to state that the described impasse avoidance techniques are per se ethical, it acknowledges that the techniques may at times be ethically utilized by a mediator.  Any mediator choosing to proceed with either approach must do so only after first considering the various limiting provisions in the rules and the totality of the circumstances.

Rules 10.210, 10.220, 10.310(a), 10.330(a), 10.370(a) and (c), 10.420(b)
Committee Notes to Rule 10.370

2008-005

A. A mediator may ethically engage in unsolicited direct marketing to the parties and/or attorneys in dissolution of marriage cases using information posted online by court clerks, but may do so only in strict compliance with Rule 10.610 governing mediator advertising.  Any mediator engaging in this practice must also bear in mind the extent to which mishandling such communication may damage the reputation of individual mediators and community acceptance of the profession at large.

B. It is not ethical for a mediator to send out a notice of mediation directly to the parties in the manner suggested in the inquiry. 

Rules 10.310(b), 10.330(a), 10.520, 10.610, 10.620, and 10.650
Rules 12.740 and 12.741
Rule 4-7.4(b)(2), Rules Regulating The Florida Bar
MEAC Opinions 2001-006 and 2003-004

2008-006

A.It is not permissible for a mediator to dictate, over the parties’ objections, who participates in a mediation caucus. 

B. If someone participates in a mediation, either a full session or just a caucus, that person is a mediation participant subject to the confidentiality requirements under Florida’s Mediation Confidentiality and Privilege Act.  Under the statute, there is no violation of confidentiality associated with disclosing mediation communications to another mediation participant.

Rules 10.310(a) and 10.420, Sections 44.403(2) and 44.405(1), Florida Statutes
MEAC Opinion 2006-007 

2008-007

A clear conflict of interest exists whenever a law firm in which a mediator is a partner is part of an adversary process involving a party to the mediation regardless of the size of the law firm, the location of other cases, or the mediator’s lack of personal involvement.

Rule 10.340
MEAC Opinion 2002-005

2008-008

There is a clear conflict of interest when a mediator, having mediated a dispute, subsequently represents or otherwise takes a position for or against a former party in a related matter.

Rules 10.340 (a)-(c), 10.620, and 10.650
MEAC Opinions 94-002, 94-003, 96-002, and 2005-004
Rules 4-1.12 and 4-2.4, Rules Regulating the Florida Bar

2009

Summary of Opinion

Current Cites

2009-001

It is not permissible to serve as a general magistrate and mediator for the same case.

Rules 10.310; 10.330; 10.340; 10.360; 10.900
MEAC Opinion 96-002

2009-002

The Rules for Certified and Court-Appointed Mediators do not contain a specific prohibition against mediators serving as an arbiter and interpreter of a settlement agreement the mediator previously mediated; however, engaging in such activity raises serious ethical concerns.   

Rules 10.310, 10.310 Committee Note, 10.330(c), 10.370, 10.420(c), 10.620, 10.640
MEAC Opinions 1996-002 and 1998-006

2009-003

A mediator’s permissible marketing efforts depend on fact-specific circumstances such as cost and whether intended to cultivate favor with particular potential future clients.

Rules 10.330; 10.340; 10.610, 10.620
MEAC Opinions 2001-006 and 2002-004

2009-004

A mediator’s impartiality is not necessarily compromised nor is a conflict created simply because a mediator agrees to serve for a reduced fee as a “preferred” provider; however, any mediator who has an ongoing relationship for the provision of mediation services needs to determine whether that relationship affects impartiality or creates a conflict of interest.

Agreeing to the terms described and mediating cases scheduled as a result of that agreement does not appear to compromise a mediator’s integrity or impartiality nor violate the requirement that mediators respect the professional relationships of other mediators.

Fla. Stat. § 440.25(3)(b) (2008)
Rules 10.330, 10.340, 10.380(a) and (e), 10.620, and 10.660
MEAC Opinions 96-001 and 98-006

2009-005

Although the rules do not explicitly prohibit mediators from holding themselves out as “experts” in advertisements and web pages, communications regarding mediator qualifications or services must be both accurate and honest and may not contain false or misleading information.

Rule 10.610
MEAC Opinions 2004-001 and 2002-003

2009-006

A certified mediator may provide a curriculum vita, solicited or unsolicited, to a trial judge for the purpose of receiving case referrals from that judge. 

Rules 10.510, 10.530, 10.610
Rule 1.720(f)(2), Florida Rules of Civil Procedure
Rule 8.290(e)(1) , Florida Rules of Juvenile Procedure
Rule 12.741(6)(B), Florida Family Law Rules of Procedure

2009-007

Consistent with the standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.  Rule 10.370(a).  If the mediator’s explanation of a judgment is consistent with Rule 10.370(a), then the mediator may provide that information. 

Rules 10.220, 10.310(a), 10.330(a), 10.420(b)(3), 10.370(a)-(c) and 10.410

2009-008

Answer to Question 1:  Advertisements of mediation services must be accurate and honest and may not contain false or misleading information.  If the mediator in this instance is, in fact, a former circuit judge, then a representation of same in an advertisement for mediation services is neither inaccurate nor dishonest. 
Answer to Question 2:  An advertisement offering evaluation services as mediation is misleading and a violation of the mediator advertising rule.
Answer to Question 3:  To avoid engaging in a marketing practice which contains misleading information, the mediator should make clear that the listing is for types of cases handled rather than certification areas.

Rules 10.610 and 10.660,
MEAC Opinions 2004-001 and 1995-007

2009-009

It is a conflict of interest for a mediator to mediate a case when one of the mediator’s law partners is currently performing transactional legal services for the law firm representing the party to the mediation.

Rule 10.340

MEAC Opinions 2002-005 and 2008-007

2009-010

It is not appropriate for a mediator to insert the original claim amount (from the complaint) in a paragraph of a settlement form, awarding that amount as a judgment to the Plaintiff in the event of the default of the Defendant, if that has not been agreed to by the parties.

Consistent with applicable law, rules of procedure and local administrative rules, it is appropriate for a mediator, upon agreement of the parties, to delete pre-printed default language on a small claims stipulation form.

Rules 10.230(a), 10.300, 10.310(a), 10.420(c), 10.500 and 10.520

 

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

 

2010

Summary of Opinion

Current Cites

2010-001

A certified mediator may designate mediation clients (parties) or attorneys who participate in mediations with the mediator as "friends" on a social networking site, and permit clients or attorneys to add the mediator as their "friend". A mediator should keep in mind that doing so may limit the clients with whom the mediator may work in the future.  

Rules 10.330 (a)-(b), 10.340 (a)-(c), 10.340 Committee Note

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

2010-003

The use of the word “judge” in the title of the mediator’s company, as depicted on stationery, business cards, the title of a website homepage, and other marketing materials is prohibited.

Rule 10.610(d)
Commentary to Rule 10.610 Florida Supreme Court Opinion SC09-1384

2010-004

Answer to Question 1A:  Even if the parties do not raise the issue, a mediator may raise the issue of the parental address that will be included in the parenting plan for school enrollment.
Answer to Question 1B:  A mediator is accountable to the referring court with ultimate authority over the case.  Any interaction discharging this responsibility, however, shall be conducted in a manner consistent with these ethical rules. 
Answer to Question 1C:  The actions of a judicial officer are governed by the Rules of Judicial Administration and therefore outside of the jurisdiction of the MEAC.
Answer to Question 2A:  A mediator is prohibited from taking on the dual role of mediator and notary.
Answer to Question 2B:  Questions regarding the enforceability of mediated settlement agreements are legal questions and hence outside of the jurisdiction of the MEAC.

Rules 10.310, 10.320, 10.340(d), 10.500, 10.520 and 10.900
Committee Notes to Rules 10.320, 10.340 and 10.370
Rule 12.740(f)(2), Florida Family Law Rules of Procedure
MEAC Opinions 2004-004, 2004-006, 2006-002, 2007-005

 

2010-005

Answer to Questions One and Two:  It is up to the mediator to decide how to interpret the hesitation of the party. If, after further inquiry, the mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the party of the right to seek independent counsel, therefore making this a requirement.
Answer to Question Three:  The mediator should honor the party’s right to self determination after assessing the party’s ability to participate meaningfully and with understanding of the terms.  If however, the mediator believes the party is unable to rationally and intelligently assess the terms of the agreement or the mediator is no longer impartial, then the mediator must adjourn, terminate or withdraw from the mediation. 

Rules 10.310(a), 10.330(b), 10.370(b), 10.420(b)(2-4)
Committee Note to Rule 10.370

 

 

2010-006

Answer to Question One:  A mediator may discuss and “explore settlement alternatives” with the parties as long as the activities by which the mediator does so is consistent with the Rules for Certified and Court-Appointed Mediators.

Answer to Question Two:  The answer to question one above does depend on whether the mediator was in caucus with the parties. 

Rules 10.220, 10.310, 10.330, 10.370, 10.370(c)

2010-007

At the completion of mediation, a mediator shall report “agreement” or “no agreement” without comment or recommendation as dictated by the Rule 1.730(a)-(b), Florida Rules of Civil Procedure.  However, a mediator may report that a mediation was adjourned.

AOSC09-54 In Re: Residential Mortgage Foreclosure Cases, Exhibit 9
AOSC10-57 In Re: Guidance Concerning Managed Mediation Programs for Residential Mortgage Foreclosure Cases
Rule 10.420 (b)(1-5), Florida Rules for Certified and Court-Appointed Mediators
Rule 1.730 (a)-(b), Florida Rules of Civil Procedure
Sections 401-405, Mediation Confidentiality and Privilege Act

2010-008

Answer to Question One: A mediator assigned through the Residential Mortgage Foreclosure Mediation Programs (RMFMP) or in any other mediation venue may not use the mediation conference to solicit future business from the parties during the mediation conference.
Answer to Question Two:  It is not appropriate for a mediator to use a RMFMP mediation conference (or any other mediation conference) to solicit and remove the mediation to his office for private mortgage foreclosure mediation.
Answer to Question Three, Part A:  A mediator should recuse himself/herself from a mediation conference when he/she has represented defendants against a specific financial institution that is a party at a current mediation conference.  This is a non waivable conflict.
Answer to Question Three, Part B:  A mediator should not declare an impasse simply because one or both parties feel there is a conflict of interest with the mediator and one of the parties has requested a different, neutral mediator.
Answer to Question Three, Part C: The actions of a Program Manager of a RMFMP are outside of the jurisdiction of the MEAC which is charged with providing ethical guidance to certified and court-appointed mediators. 

Rules 10.310, 10.330(c), 10.340(a) and (c), 10.510, 10.620
Committee Note to Rule 10.340
MEAC Opinions 2001-006, 2003-006, 2004-005

2010-009

Answer to Question One:  No, it is not appropriate for a court-appointed mediator to act as plaintiff’s representative during the pre-trial process.
Answer to Question Two:  A court-ordered mediation begins when the court refers the case to mediation.  In this scenario, actions undertaken prior to a court referral to mediation would be outside the mediation process. 

Rules 10.330, 10.340(a), and 10.420(a)

2010-010

Yes, it is ethical for a mediator to participate in the Florida Supreme Court's Residential Mortgage Foreclosure Mediation Program (RMFP).

AOSC09-54 and AOSC10-57, Rule 10.520, MEAC Opinions 2009-0011, 2010-007, 2010-008, 2010-008, 2010-011 and 2010-012

2010-011

Questions regarding mediator fees, reports to the court, participation of parties without full authority to settle in general and in connection with the Residential Mortgage Foreclosure Mediation (RMFM) Programs are examined, explained and responses given in the six questions posed in this opinion.  

Rules 10.310(a), 10.380(c), 10.500, 10.510, 10.520
MEAC Opinions 2007-002 and 2010-007  
AOSC09-54 and AOSC10-57
Rules 1.720(b) & (g) and 1.730(b)

2010-012

A mediator is accountable to the referring court with ultimate authority over the case.  Any interaction discharging this responsibility, however, shall be conducted in a manner consistent with these ethical standards.  If a mediator believes a court program is asking the mediator to violate the mediator’s ethical standards, the mediator shall decline to do so.

Rule 10.500
MEAC opinions 2000-003, 2004-006, 2005-007, 2010-007, 2010-010 and 2010-011 
Florida Supreme Court Administrative Orders AOSC09-54 and AOSC10-57
Rules 1.720(b) and 1.730(a) & (b) 

2010-013

A former judge is prohibited from using the term “Judge Emerita” in the title of the mediator’s company, as depicted on stationery, business cards, the title of a website homepage, and other marketing material.  The Committee maintains confidence in and refers mediators to MEAC Opinion 2010-003 which addresses this marketing restriction in more detail.

MEAC Opinion 2010-003
Rule10.610  & Commentary to Rule 10.610
Florida Supreme Court Opinion SC09-1384

2010-014

A mediator does not have the authority to compel attendance at subsequent mediation conferences against the wishes of the parties and/or their counsel. 

Rules 10.310 (a) and (b) and 10.520
Rule 1.720(c)
MEAC Opinion 2004-006

2011

Summary of Opinion

Current Cites

2011-001

It is neither a requirement nor a violation of the Florida Rules of Civil Procedure or the Rules for Certified and Court-Appointed Mediators for a certified mediator to sign a written settlement agreement in the capacity of mediator.

Rules 1.730(b) and 1.750, Rule 7.090, Rule 8.290, Rule 9.740, Rule 12.740, Rule 10.520

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

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

2011-004

The Committee remains confident in the continuing correctness of MEAC 2010-004 which states in part, “a mediator is prohibited from taking on the dual role of mediator and notary.”

MEAC Opinion 2010-004, 2007-005 and 2004-004
Rule 10.340(d),
Note to Rule 10.340

2011-005

The MEAC remains confident in its previous decisions, most recently 2010-014.  Upon the request or demand of a party at the mediation, the mediator must declare an impasse.  Mediators must act in accordance with the Florida Rules for Certified and Court-Appointed Mediators and must conduct the mediation so that the principles of self-determination are protected.  However, a mediator should not declare an impasse under this scenario before the opening statement is delivered pursuant to Rule 10.420(a) and should attempt to explore options or alternatives to impasse with the party requesting same.

Rule 1.720 (c)
Rules 10.310(a)-(d) and 10.420 (a) and (b)(1)-(3)
MEAC Opinions 1995-009, 2001-004 and 2010-014

2011-006

Although the inquirer is a certified mediator, the question of who determines who is a company representative for the purposes of mediation participation is not a question of mediator ethics.  The rendering of legal guidance is not within the jurisdiction of the MEAC.

Rules 10.310 and 10.340, Rule 1.720 Chapter 44, Sections 401-406, Florida Statutes, 2010

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

2011-008

Answer to Question One:  As stated in SC09-1384, “an accurate representation of the mediator’s judicial experience in references to background and experience in bios and résumés would not be inappropriate.” [emphasis added]  The MEAC does not have the power or authority to determine the answers to the questions posed with regard to constitutional rights.  
Answer to Question Two:  The MEAC does not have the power or authority to determine constitutional rights and therefore declines to answer this question.  
Answer to Question Three: It is false and misleading and therefore prohibited for a certified mediator to use letterhead that is entitled “Judge ______(ret) or “former judge”.

Rule 10.610
Commentary to Rule 10.610
MEAC Opinion 2010-003
Florida Supreme Court’s Opinion in SC09-1384 (April 1, 2010)

2011-009

It is inappropriate to use a business name or phrase to advertise mediation services that portrays the mediation process or the role of a mediator in a manner that is untrue, misleading or demeans the dignity of the mediation process or the judicial system.

Rules 10.210, 10.220 and 10.610 (a), (e) and (f)

 

2011-010

It is misleading and inappropriate for a mediator who has completed a Florida Supreme Court mediation training but is not yet certified to advertise him/herself as Florida Supreme Court County Court “Trained” Mediator.

Rule 10.610 Marketing Practices
MEAC Opinion 2002-003

2011-011

The questions presented relate to the Code of Ethics for Public Officers and Employees, Chapter 112, Florida Statutes and not the Florida Rules for Certified and Court-Appointed Mediators. 

Rules 10.330, 10.340, 10.520, 10.620
MEAC Opinions 2005-002, 1999-009, 1999-006

2011-012

Certified mediators do not have the authority to unilaterally ban the use of cellular communication during the mediation process.  Decisions regarding the use of communication devices and participant participation in the mediation via electronic methods are decisions for the parties to make. 

Rules 10.220, 10.300, 10.310(a) and 10.360(a)
Sections 401-405, Florida Statutes Chapter 44

2011-013

A certified mediator does not have the authority to direct or suggest to an attorney, acting as a party representative in a small claims case, to make a phone call over the objection of the physically present named party.                

Rules, 10.310(a), 10.330(a), 10.360(a), 10.520, 10.620,
Rule 7.090(f)
MEAC Opinions 2000-005, 2006-007, 2007-002, 2008-006, 2010-014

2011-014

A mediator who is a member of a law firm or professional organization is obliged to disclose any past or present client relationship that firm or organization may have with any party involved in the mediation.  There is no dispensation if the conflict is caused by a member of a law firm for which the mediator works or with whom the mediator is affiliated.

Whether the conflict can be waived by the parties in order to allow the mediator to conduct the mediation will depend on the factors of the particular case.

Rules 10.340 (a) – (d) and 10.340 Committee Note,
MEAC Opinions (listed in order as referenced in question): 2010-008, 2003-006, 2002-005, 2008-007, 2009-009 and 2004-007

2011-015

It is inappropriate and misleading for a certified mediator to use his / her mediator certification credentials to obtain a discount he / she is not otherwise entitled to receive. 

Part One, Rules 10.110(b) and 10.620

2011-016

It is beyond the jurisdiction of the MEAC to render an opinion as to attorney obligations.

Rule 10.340 and Committee Note

2011-017

A mediator is prohibited from taking on the dual role of mediator and interpreter or translator.

The responsibilities of a Residential Mortgage Foreclosure Mediation Program (RMFMP) and the actions of a RMFMP manager are outside the jurisdiction of the MEAC.

Rule 10.340(d) and
Committee Note
MEAC Opinions 2011-004, 2010-004, 2007-005, 2004-004

 

2011-018

Certified mediators are required to follow the statutory requirements for reporting abuse in accordance with Florida Statutes and consistent with other professional licenses held by a certified mediator. 

Rules 10.360 (a) and 10.650,
Florida Statutes 39.201, 44.405 (4)(a)(3) and 415.1034

2012

Summary of Opinion

Current Cites

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

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

2012-003

In this example, the conflict is resolvable with appropriate mediator disclosures and party agreement as outlined in the Committee Note to Rule 10.340, Conflicts of Interest, Florida Rules for Certified and Court-Appointed Mediators.

Rule 10.340 (a)-(c) with Committee Note, Florida Rules for Certified and Court-Appointed Mediators

2012-004

Question One: In a case in which a mediator's former law partner is representing a party as an advocate subsequent to the mediator leaving the law firm, there is no pre-determined amount of time that must elapse before the mediator may mediate such cases. In conflict of interest cases, each case must be evaluated individually through a series of filters to determine if the conflict is waivable or a "clear" conflict and therefore non waivable.
Question Two: It is a clear conflict of interest for a mediator to mediate a case in which his/her former law partners represented any of the parties while the partnership was in effect. This would be a non waivable conflict.

Rules 10.330, 10.340
Committee Note to Rule 10.340
MEAC Opinions 2002-005, 2008-007, 2009-009
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, Florida Rules of for Certified and Court-Appointed Mediators, Rule 9019-2(d)(2) of the local rules of the Bankruptcy Court for the Middle District of Florida Sections 401-405, Chapter 44, Florida Statutes, MEAC Opinions 2004-006 and 2006-003
2012-006 Under certain circumstances, an attorney who conducted a joint representation of a couple in an adoption or in working with them on an estate plan, may, upon both parties' request, subsequently serve as their mediator in an unrelated legal proceeding. Rules 10.200, 10.300, 10.330, 10.340, 10.370
2012-007

Question 1: 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.

Question 2: 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.

Question 3: 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."

Question 4: 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, Florida Rules for Certified and Court-Appointed Mediators
Sections 401-406, Chapter 44, Florida Statutes
MEAC Opinion 2012-001
2012-008 It would be inappropriate and improper for a certified mediator to offer remuneration to individuals who refer students to the certified mediator's mediation certification training programs and any other mediation trainings. Rules 10.380(e), 10.620(a)
2012-009

Question one:  Your circuit’s mediation report form which has the outcomes: “agreement,” “partial agreement,” “no agreement,” or “continuance” (adjournment), meets the requirements of the Florida Rules of Civil Procedure and the Florida Family Law Rules of Procedure.

Question two:  It is a clear violation of Florida Rule of Civil Procedure 1.730(a) to add the term “signed” to a description of an agreement in a mediation report.

Question three:  The interpretation of Florida Family Law Rule of Procedure 12.740(f)(1) on which this question is based is erroneous.  Although rule 12.740(f)(1) allows the parties to agree to electronically or stenographically record an agreement, that  agreement must be “made under oath or affirmed” and the transcript of such agreement must then be signed by all parties before being filed with the court.

Rule 10.420(c)
Rule 1.730 (a) & (b)
Rule 12.740 (f)(1)-(3)
MEAC Opinion 2010-007

§44.404, 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.”

Rule 10.360(a), and Committee Notes to rule 10.310,
Rule 12.740(f)(1) & (3), §44.405(4)(a), Fla. Stat. (2012)
MEAC Opinion 2010-002

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)
2013-002

Question Withdrawn by Mediator Requesting Opinion

 

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

Rule Cite Key:
1.700 et. seq. is found in the Florida Rules of Civil Procedure
7.909 is found in the Florida Small Claims Rule
8.290 et. seq. is found in the Florida Rules of Juvenile Procedure 9.700 et seq. is found in the Florida Rules of Appellate Procedure 10.100 et. seq. is found in the Florida Rules for Certified and Court-Appointed Mediators
12.000 et. seq. is found in the Florida Family Law Rules of Procedure
 
All MEAC Opinions are available on the DRC website, www.flcourts.org, Alternative Dispute Resolution,
Advisory Ethics Opinions
Last Updated: December/2013

Contact


For additional information please contact The Dispute Resolution Center at 850-921-2910 or at DRCmail@flcourts.org.