Mediation Confidentiality – Be sure!
By: Rodney Romano, Esquire
Here’s a good practice pointer: Before you start your next mediation, be sure you know what rules of confidentiality are being followed. This can affect you in two ways.
First is caucus confidentiality. Some mediators feel free to share whatever they learn in caucus unless they are expressly instructed to keep something confidential. Others have the opposite default, that is, they keep everything confidential unless they get express permission to share. I subscribe to the latter, although there’s no right or wrong. What is important is that you as the attorney or the adjuster have a clear understanding of how you want the mediator to handle caucus confidentiality, and then there shouldn’t be a problem. Just tell the mediator at the beginning of the first caucus how you want confidentiality handled.
Second is whether the mediation is itself protected by a confidentiality privilege. The governing Florida Statute is Chapter 44, specifically §44.403, the Mediation Confidentiality and Privilege Act. The mediation is confidential by law (§44.402) in three circumstances: 1) if it is required by statute, court rule, agency rule or order, oral or written case-specific court order or court administrative order; or 2) The parties expressly agree to be bound by the Act (§44.401-§44.406); or 3) if the mediator is a Florida Supreme Court certified mediator. This is one reason why all Matrix Mediators are certified through the Florida Supreme court. Some people use non-certified mediators – and with good results. If you mediate with a non certified mediator in a non court ordered mediation, the mediation is probably not automatically privileged. Here’s the fix: simply get an express agreement among the participants that mediation will be conducted under ss.44.401-44.406 and you’ll be covered by the statute.
When confidential, the mediation participants are prohibited from disclosing any mediation communications to anyone other than other participants or the participant’s counsel.
You may be interested to learn that mediation begins –and the privilege attaches –when the court issues a mediation order or the parties agree to mediate (ss. §44.404). At Matrix Mediation, we look forward to helping you reach your best result in your cases.