Florida
Dispute Resolution Center
THE RESOLUTION REPORT ONLINE April 2006 - Volume 22, Number 2
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.
A complete index of MEAC Opinions
is found by following this link.
While the Committee does not have
jurisdiction to apply the Workers’ Compensation statute to
the specific facts in 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.
The written apology referenced 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.
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. Thus, the mediator in your question has
violated at least Rule 10.360.
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.
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.
The Homeowners Association (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.
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.
