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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); Sections 44.405(2), 44.201(5), Florida Statutes
MEAC 96-005, 99-012, 2001-002, 2001-005;
Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.
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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Note: Read MEAC Opinion 2006-003 as it has rescinded portions of MEAC 2001-010 |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, 1.720(b), 1.750(e), 7.090(f) MEAC 99-002Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.
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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 2001-005Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.
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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 2000-010Note: Changes to the rules in 2006 may impact this opinion.
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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.
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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 2001-007Note: Changes to the statute in 2004 may impact this opinion.
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There is no ethical violation for a mediator to complete statistical forms so long as the mediator does not reveal any confidential communications from the mediation. A county court mediator may sign a statistical form since a mediator has an ethical duty to assist the court in maintaining these types of records. |
Rules 10.360(a) and (c), 10.510, 10.520; 1.730(a) and (b) Section 44.405(2), Florida StatutesNote: Changes to the statute in 2004 and rules in 2006 may impact this opinion.
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| 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.
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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 2003-002Note: Changes to the rules in 2006 may impact this opinion.
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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 |
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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) and (c), 10.410, 10.810(b) and (c), 10.900(a), Committee Notes to Rule 10.340
Sections 44.401 – 44.406, Florida Statutes
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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
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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
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