Ten Years Later: Florida Mediation Privilege

Success of mediation surely rests with confidentiality, allowing parties to share information, solve issues, build trust, and self-determine whether to resolve a dispute-- all without fear of subsequent disclosure of candid statements shared during the conference. A decade ago, Florida amended Chapter 44, Florida Statutes to create the Mediation Confidentiality and Privilege Act, § 44.401 et seq. Prior to 2004, it was unclear to what extent any privilege applied and when it could be asserted. Under the Act, all mediations, including both court-ordered and other types (like pre-suit and voluntary) were granted confidentiality protections. This made all mediation communications confidential and applies to all mediation participants. The use of mediation has grown significantly in Florida since these protections were codified. The assurance of confidentiality continues to be essential to the integrity and success of mediation. It still encourages candor between the parties and on the part of the mediator. In order for cases to have a chance of settling, the parties must have faith in the fundamental elements of neutrality and confidentiality with limited exceptions to the privilege outlined here-- http://www.flsenate.gov/Laws/Statutes/2014/44.405