Mediation myths and urban legends.

• Author: Tetunic, Fran L.
• Position: Florida

Mediation, (1) firmly rooted as a vital component of Florida's court system, is the present, not the wave of the future. The Florida Legislature and judiciary have created "one of the most comprehensive court-connected mediation programs in the country." (2) Over 18,000 people have completed a Supreme Court of Florida certified mediation training program, and over 5,000 people are certified by the Supreme Court of Florida as county, family, circuit, or dependency mediators. (3) All 20 judicial circuits routinely refer cases to mediation. (4) Additional cases go to mediation by agreement of the parties or as a requirement prior to filing suit. (5)

Significant changes in mediation law and ethical rules have taken place over the last four years. In 2004, the Mediation Confidentiality and Privilege Act (act) came into effect, (6) and in 2006, the Florida Rules for Certified and Court-appointed Mediators (Mediator Rules) were amended to be consistent with the act. (7) Also in 2006, the Rules Regulating The Florida Bar were amended to include third-party neutrals in the rule regarding conflict of interest and to add a rule specific to third-party neutrals. (8) Additionally, the Mediator Ethics Advisory Committee (MEAC), a standing committee of the Supreme Court of Florida, continues to respond to written ethical questions posed by mediators subject to the Florida Rules for Certified and Court-appointed Mediators. (9) MEAC has issued over 100 advisory opinions, (10) which, while not law, serve as guidance on which mediators may rely in good faith when grappling with ethical dilemmas. (11)

The significant body of mediation law, rules, and advisory opinions offers lawyers the requisite information to serve their clients by understanding the mediation process, knowing how to prepare their clients for mediation, and knowing when and how to mediate. Attorneys need to be mindful of the complexity of mediation confidentiality, the civil remedies for breach of mediation confidentiality, (12) and the potential for a court to overturn or reform a mediated agreement based on mediator misconduct. (13) This article identifies and debunks the top 10 mediation myths and urban legends to assist lawyers in better representing their clients in mediation-related matters.

1) Everything in Mediation Is Confidential

Confidentiality, while a hallmark of mediation, is not absolute. The Mediation Confidentiality and Privilege Act, enacted in July 2004, provides for the confidentiality of mediation communications. (14) "'Mediation [c]ommunication' means an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation." (15) The definition specifically excludes "[t]he commission of a crime during a mediation." (16)

All mediation communication is confidential except as delineated in the act, (17) which mandates disclosure in only one regard. Mediation participants are obligated to make mandatory reports of abuse and neglect of children and vulnerable adults "solely for the purpose of making the mandatory report to the entity requiring the report." (18) The permissive disclosure of "reporting, proving, or disproving professional malpractice [or misconduct] occurring during mediation" is similarly limited "for the purpose of the professional malpractice proceeding" or "internal use of the body conducting the investigation." (19)

Mediation parties may waive confidentiality for any mediation communication (20) directly by agreement or indirectly by "disclos[ing] or mak[ing] a representation about a privileged mediation communication ... to the extent necessary for the other party to respond to the disclosure or representation." (21) The disclosed mediation communication "remains confidential and is not discoverable or admissible for any other purposes, unless otherwise permitted" by the act. (22) In contrast, mediation parties must expressly agree, consistent with the law, that a mediated agreement is confidential, for the act does not provide for "confidentiality or privilege attached to a signed agreement reached during a mediation." (23)

The act provides two additional significant exceptions to confidentiality for mediation communications: those "willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence" (24) and those intended "for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation." (25) Despite confidentiality, information disclosed during mediation "that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery." (26)

The act's scope is broad--both automatic and voluntary. It applies to any mediation "[r]equired by statute, court rule, agency rule or order, oral or written case-specific court order, or court administrative order." (27) Additionally, mediation parties may expressly agree to be governed by the act, (28) and will be governed by the act if the mediator is "certified by the Supreme Court of Florida, unless the parties expressly agree not to be bound." (29) Mediation parties may also agree to opt out of certain portions of the act regarding confidentiality, privilege, and civil remedies. (30)

Understanding mediation confidentiality and applying the law has become increasingly important under the Mediation Confidentiality and Privilege Act, which provides serious civil remedies for breach including "equitable relief, compensatory damages, attorney's fees, mediator's fees, and costs." (31) Further, mediators are bound to follow the Florida Rules for Certified and Court-appointed Mediators, obligating them to "maintain the confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties." (32) Accordingly, mediation participants seeking to avoid civil actions and mediators seeking to avoid grievances need to consider not only the statutory exceptions to confidentiality, but their obligation to...