Mediation Confidentiality and Privilege Act Becomes Law

Florida Dispute Resolution Center, The Resolution Report,
Volume 19, Number 1, June 2004

Effective July 1, 2004, most mediations conducted in the state of Florida will be subject to new provisions relating to confidentiality and privilege. You can access a complete copy of the new provisions via the internet at www.flsenate.gov . Insert “1970” on the left hand side of the page where it says “Jump to Bill” and look for the enrolled copy, which is the last one on the list. After being approved by the Governor, it was assigned chapter 2004-291, Laws of Florida. (You can also go to: http://www.flsenate.gov / for enrolled version of bill.)

Briefly, the law creates the “Mediation Confidentiality and Privilege Act.” The Act would apply to any mediation:

• required by statute, court rule, agency rule or order, oral or written case-specific court order, or court administrative order;

  
  

• conducted under the act by express agreement of the mediation parties; or

  
  

• facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by the act.

The mediation parties may agree in writing that any or all specified provisions of the act will not apply to all of part of a mediation proceeding. The terms “mediation participant,” “mediation party,” “subsequent proceeding” and “mediation communication” are defined, the latter as “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.” In addition, it should be noted that the commission of a crime during a mediation is not a mediation communication. While not technically a definition, the act clarifies when a mediation begins and ends, both in relation to court-ordered and noncourt-ordered mediation.

Except as otherwise provided, all mediation communications shall be confidential and a mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel. A violation of confidentiality may be remedied by a civil action or, if the mediation is court-ordered, may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney fees and mediator fees. The civil action, which may be brought by any party, for a knowing and willful disclosure of confidential information, could subject the violator to equitable relief and compensatory damages, as well as attorney fees and costs.

The Act retains the concept that each mediation party has a privilege to refuse to testify and to prevent and other person from testifying in a subsequent proceeding regarding mediation communications.

The Act also provides exception to confidentiality and privilege in relation to the following communications:

• a signed written agreement reached during a mediation (unless otherwise agreed)

  
  

• a communication that is willfully used to plan a crime, commit, or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence

  
  

• the making of a mandatory report of child abuse or neglect or elder abuse, neglect, or exploitation, solely for the purpose of making the mandatory report to the entity requiring the report

  
  

• a communication used to report, prove, or disprove professional malpractice or misconduct…

  
  

• a communication establishing or refuting legally recognized grounds.

There also is no privilege and no confidentiality if it has been waived all parties.

Communications subject to disclosure remain confidential and are not discoverable or admissible for any other purpose, unless otherwise permitted by the act. Information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation.

Other provisions of the bill extend mediator judicial immunity to trainees fulfilling mentorship requirements for mediator certification by the Supreme Court and provide limited immunity for a mediator in relation to any noncourt-ordered mediation within the scope of the Mediation Confidentiality and Privilege Act.

                       

Sharon Press

Sharon Press is the Director of the Florida Dispute Resolution Center and an adjunct professor at Florida State University College of Law where she is responsible for the court-connected ADR programs for the Florida State Court System.  An area of special interest for Sharon is mediator ethics.  She serves as… MORE >