Florida continues to lead the nation in mediation.

• Author: Nieuwveld, Lisa Bench

Florida is the leader in mediation in the U.S. with its strict ethical standards, the Florida mediator certification process, and recent legislation improving confidentiality standards. In fact, in 1995, over 75,000 court-connected cases were mediated (1) and by 2001 this number increased to well over 100,000 cases. (2) In addition, attorneys increasingly request mediation before a court has a chance to order one, meaning before and after a lawsuit has been filed, (3) showing mediation's acceptance and popularity among judges, attorneys, and clients. (4) Consequently, Florida courts have developed an extensive body of case law addressing issues regarding settlement agreements, access to courts, and confidentiality. It is this latter topic which shall be discussed further in this article. Initially, I will describe statute and case law which comprises Florida's mediation laws on confidentiality up to the fall of 2004. Subsequently, I will discuss what led to Florida's reformation of its confidentiality statutes in 2004, including the creation of the Mediation Confidentiality and Privilege Act (MCPA). Finally, I will describe this new MCPA law and any possible resulting consequences.

Confidentiality

The success of mediation rests on the mediator's neutrality and confidentiality, allowing parties to share information, solve problems, build trust, and essentially decide whether to resolve the dispute, without fear of subsequent negative repercussions arising from honest, candid statements shared during the mediation process.

"One of the fundamental axioms of mediation is the importance of confidentiality. It is deemed necessary to foster the neutrality of the mediator and essential if parties are to participate fully in the process." (5) "The assurance of confidentiality is essential to the integrity and success of the [c]ourt's mediation program, and that confidentiality encourages candor between the parties and on the part of the mediator, and confidentiality serves to protect the mediation program from being used as a discovery tool for creative attorneys." (6)

In order for the mediation to have a chance at reaching a settlement, there are generally two prerequisites: first, the parties must have faith in the mediation's neutrality and, second, they must trust in the confidentiality of the process. As a fundamental element of the mediation process, confidentiality has been a hotly debated topic in the courts and among academia. (7)

Florida also felt the debate's repercussions and responded by greatly broadening its narrow confidentiality protection for mediation.

Florida Statutory Confidentiality Protection, Pre-2004

Confidentiality privileges in Florida are statute based and, prior to 2004, created a very narrow approach.8 F.S. Ch. 44 contains the most significant Florida legislation on mediation, providing the basic governing principles. Ch. 44 defines mediation as "a process whereby a ... mediator acts to encourage and facilitate the resolution of a dispute between two or more parties." (9) In order to invoke court-ordered mediation, one party requests mediation and the court, in most civil cases, is obligated to order the parties to mediation. (10)

The confidentiality privilege, extending only to the parties involved, left the mediator exposed. Although the mediator could invoke this privilege on behalf of the parties (similar to the attorney-client privilege), the mediator could not invoke it for himself or herself. (11) On the other hand, Florida's Supreme Court certified mediators, governed by the Florida Rules for Certified and Court-Appointed Mediators, fell under a specific duty of confidentiality. The statutes granted Florida courts wide discretion to enforce a confidentiality privilege, so long as the court-ordered mediation was conducted in accordance with the rules, (12) and these rules explicitly subjected a mediator to removal should he or she breach confidentiality. (13)

Therefore, an obvious inconsistency existed. The statutory privilege for court-ordered mediation prevented anyone from disclosing communications made during the mediation. The rules prevented disclosure unless "obligated by law." To add further confusion, Florida had a law that required mandatory reporting of child, elderly, and individuals with disabilities abuse and/or neglect, (14) which most court-appointed mediators interpreted as requiring them to breach confidentiality in such situations.

In 1991, the Fifth District addressed this tension between the need for confidentiality and the public policy need for revealing abuse without giving any real guidance. In C.R. v. E., 573 So. 2d 1088 (Fla. 5th DCA 1991), a parent alleged that a Catholic priest fondled her minor daughter, and, although the parties agreed to submit their dispute to mediation/arbitration under the Christian Conciliation Services of Central Florida (CCS) forum, which contained a confidentiality provision, the parents viewed the confidentiality agreement as null and void. (15) The...