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June 2007 - Volume 22, Number 2
News on Dispute Resolution trends, laws and ethics

The opinions of the Mediator Ethics Advisory Committee are rendered pursuant to the authority of rule 10.900, Florida Rules for Certified and Court-Appointed Mediators, and are based on the specific facts outlined in the question. They are based on the Committee's interpretation of the rules in effect on the date the opinions were rendered. The summary of each opinion has been prepared for quick reference. Any inconsistency between the summary and the opinion should be resolved in favor of the opinion.
Mediator Ethics Advisory Committee issued the following opinions since the last Resolution Report: Click on the number to go to the full Opinion.
Based on the facts of the question, the filing of a grievance with The Florida Bar does not appear to be prohibited by the statutory and rule confidentiality requirements. W hether the reporting of the attorney litigant’s action is prohibited is beyond the scope of the Committee’s function since it would involve an interpretation of the attorney ethics code.

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."

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.  

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.

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.

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.

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