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Conflicts of Interest
Mediator Ethics Advisory Opinions

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Opinion

Summary

Rule References
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, Florida Rules for Certified and Court-Appointed Mediators

1: No, it is not appropriate for a court-appointed mediator to act as plaintiff’s representative during the pre-trial process.

2: 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), Florida Rules for Certified and Court-Appointed Mediators

1: 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.

2: 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.

3A: 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.

3B: 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.

3C: 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, Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 2001-006, 2003-006, 2004-005
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 Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 2002-005 and 2008-007
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 96-001 and 98-006
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 2001-006 and 2002-004
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 1996-002 and 1998-006
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 94-002, 94-003, 96-002, and 2005-004; Rules 4-1.12 and 4-2.4, Rules Regulating the Florida Bar
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 10.340Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinion 2002-005
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC Opinions 2004-004, and 2005-004
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC 2003-006 and 2004-007
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) Florida Rules for Certified and Court-Appointed Mediators; MEAC 94-003 and 2004-004
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) Florida Rules for Certified and Court-Appointed Mediators; MEAC 99-006
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), Florida Rules for Certified and Court-Appointed Mediators
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 Florida Rules for Certified and Court-Appointed Mediators; MEAC 2003-006

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, Florida Rules for Certified and Court-Appointed Mediators; 12.740(f)(1) Florida Family Law Rules of Procedure; Section 44.404(1), Florida Statutes; MEAC 94-003, 2000-009, 2001-003
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC 94-002, 94-003 and 99-001
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 Florida Rules for Certified and Court-Appointed Mediators; MEAC 2001-009
It would be ethically inappropriate to become counsel of record for either party in their pending divorce when the first contact was a joint meeting to discuss mediation. Rules 10.310, 10.330(a) - (c), 10.360(a), 10.370(b) - (c), Florida Rules for Certified and Court-Appointed Mediators; MEAC 94-003, 97-009
Note: Changes to the rules in 2006 may impact this opinion.

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, Florida Rules for Certified and Court-Appointed Mediators
A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases. Rules 10.340(a)-(c) Florida Rules for Certified and Court-Appointed Mediators; MEAC 99-007
A mediator is not precluded from mediating as case in which one of the parties who previously attended a parenting course taught by the mediator. Rules 10.330, 10.340(a), 10.340(c), Florida Rules for Certified and Court-Appointed Mediators; MEAC 97-003 and 99-008
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, Florida Rules for Certified and Court-Appointed Mediators; Chapter 112, Part III, Florida Statutes
Note: Changes to the rules in 2000 may impact this opinion.
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) Florida Rules for Certified and Court-Appointed Mediators
A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases. Rules: 10.340(a) - (c) Florida Rules for Certified and Court-Appointed Mediators
A mediator's employment as a Deputy Clerk does not inherently cause ethical concerns. Rules 10.330(a), 10.340, 10.620, Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators; MEAC 97-002
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), Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators Note: Changes to the rules in 2000 may impact this opinion.
An attorney-mediator may represent a party in a subsequent dissolution of marriage. Rules 10.330(c), 10.340(d), 10.620, Florida Rules for Certified and Court-Appointed Mediators
Note: Changes to the rules in 2000 may impact this opinion.
Mediator should decline serving as a Special Master following mediating a case. Rules 10.360, 10.620, Florida Rules for Certified and Court-Appointed Mediators; Section 44.405(2), Florida Statutes
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.
Serving as counsel following service as mediator for the same case is not permitted. Rules 10.340(d), 10.420(c), and 10.620, Florida Rules for Certified and Court-Appointed Mediators; 1.730(b) Florida Rules of Civil Procedure; and 12.740(f)(1) Florida Family Law Rules of Procedure
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, Florida Rules for Certified and Court-Appointed Mediators Note: Changes to the rules in 2006 may impact this opinion.