Mediation confidentiality in Florida is governed by the Mediation Confidentiality and Privilege Act, codified in Florida Statutes §§ 44.401–44.406. This statutory framework encourages candor and openness among parties during mediation by assuring them that their communications will generally not be disclosed to outsiders or used against them later in court.
Under the MCPA, “mediation communication” 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 mediation.
These communications are deemed confidential and are typically inadmissible in any subsequent legal proceeding.
Moreover, the act provides that a mediation party has a privilege to refuse to disclose, and to prevent others from disclosing, these communications. This privilege ensures that what is said in mediation remains protected, subject to limited statutory exceptions.
Despite the broad protections afforded, confidentiality is not absolute. Section 44.405(4)(a) of the Florida Statutes sets forth specific exceptions.
These include situations where all parties agree in writing to waive confidentiality, where mediation communications are used to plan or commit a crime or where such communications are necessary for mandatory reporting of child or elder abuse.
Additionally, mediation communications may be disclosed when offered to prove or disprove a claim of mediator misconduct or professional malpractice that occurred during mediation.
Other exceptions arise when mediation communications are relevant to a claim that a mediated settlement agreement should be voided or reformed due to fraud, duress or mutual mistake.
Even when communications fall within one of these exceptions, the disclosure is typically limited to the context for which the exception applies.
To enforce these confidentiality provisions, the MCPA allows for judicial remedies.
A party whose confidentiality rights are violated may seek equitable relief such as an injunction and may also recover compensatory damages. In some instances, attorney’s fees and costs may be awarded.
These remedies are critical in maintaining trust in the mediation process and ensuring compliance with the statutory confidentiality rules.
Florida also imposes ethical duties on mediators under the Florida Rules for Certified and Court-Appointed Mediators. Rule 10.360 requires mediators to preserve the confidentiality of all information obtained during the mediation process.
Furthermore, Rule 10.520 mandates that mediators must inform all parties about the confidentiality obligations before the mediation begins.
These rules reinforce the statutory scheme and highlight the mediator’s role in safeguarding the process.
It is important to note some practical implications of Florida’s mediation confidentiality laws.
For example, although the content of mediation discussions is confidential, the terms of a written and signed mediated settlement agreement are generally not confidential unless the parties explicitly agree to confidentiality and such an agreement does not conflict with applicable law.
Observations made by the mediator—such as impressions about a party’s demeanor—are typically not protected as mediation communications and may be subject to disclosure under certain circumstances.
Mediators also remain bound by mandatory reporting laws and must report threats of violence, abuse or neglect when required by statute, even if those threats arise during mediation.
Florida’s mediation confidentiality laws are the cornerstone of its alternative dispute resolution system.
By protecting mediation communications through statutory privilege, ethical rules and enforcement mechanisms, the state ensures that mediation remains an effective, candid and trustworthy means of resolving disputes.
Attorneys, mediators and parties engaging in mediation should be familiar with the MCPA and its exceptions to navigate the process effectively while preserving the protections the law provides.
John McCorvey draws upon 35 years of experience as a trial lawyer and 17 years as a certified mediator to guide attorneys and their clients toward successful outcomes in mediation.