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| Opinion |
Summary |
Current Rule Cites |
| 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)
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(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) and 1.730(a), 8.290(l) and 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.
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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 |
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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)
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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
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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
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A mediator has no affirmative duty at the beginning of a mediation to inquire about a representative’s authority. |
Rule 10.420(a)
MEAC 99-002
Note: Changes to the rules in 2006 may impact this opinion.
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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 not 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
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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. 4 th DCA 1992)
Evans v. State , 603 So 2d 15 (Fla. 5 th DCA 1992)
Chabotte v. Chabotte, 707 So 2d 923 (Fla. 4 th DCA 1998)
Note: Changes to the rules in 2006 may impact this opinion.
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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.
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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)
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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
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| 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.”
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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.
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| 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 |
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