Mediator Testimony?

A recent query to the Florida Mediator Ethics Advisory Council (MEAC) invovled a federal court outside the state contacting the mediator regarding a post mediation status conference. Apparently, the parties gave different accounts of what occurred and the mediator was called for an opinion of the veracity of such irreconcilable statements. The mediator informed the court it would concern knowledge learned through confidential and privileged mediation communications and refused to provide same (the mediation was conducted pursuant to Florida rules and statutes). Thereafter, the mediator was ordered to "answer the question of whether plaintiff made a demand and whether the defendants made any counteroffer during the mediation, but not disclose any specific statements of the parties or the substance of their positions." MEAC advised that a mediator should not voluntarily testify in court regarding information learned in court unless confidentiality is waived by the parties or such communications fall within the exceptions listed in Chapter 44, Florida Statutes. Because this was not truly a Florida case and outside its jurisdiction, MEAC merely reaffirmed previous positions that a mediator should not voluntarily testify in court regarding information learned in mediation unless the parties waive confidentiality, or the communications fall within the exceptions found in Section 44.405, Florida Statutes. If a court issues an order for the mediator to testify, the mediator should either file a protective order or notify the judge that the mediator is statutorily required to maintain confidentiality of mediation communications. Interestingly, a Florida court decision published this month by the Fifth District Court of Appeal opining a motion to reform a mediated settlement agreement adequately alleging a claim for relief based on mutual mistake must be resolved by evidentiary hearing mentions in a footnote that a mediator would be permitted to provide testimony for the limited purpose of establishing or refuting legally recognized grounds for reforming a settlement agreement reached during a mediation pursuant to Section 44.405(4)(a)5, Florida Statutes. See more in MEAC Opinion 2021-005 and 5th DCA Case No. 5D21-316 https://bit.ly/2ZX0IUk

Mediation Law Changes Coming to Cali

Interestingly, a new California law that will take effect next year requires mediation participants to essentially sign an informed consent. Revised Evidence Code section 1129 will require a lawyer to make sure their client understands the implications of California's legal protections for mediation communications, before the client agrees to mediate. If the client has already agreed to mediation before seeking counsel, say by signing a contract with a mediation clause, consultation will be still required as soon as possible after engaging counsel. A Mediation Disclosure Notification and Acknowledgment is to be signed essentially outlining that communications, negotiations, or settlement offers in the course of a mediation must remain confidential. The ADR Section of The Florida Bar was recently considering the outstanding issue (currently in the hands of the ADR Rules & Policy Committee of The Supreme Court of Florida) of mediators possibly being required to be certified to mediate court connected cases in Florida. In that discussion, those advocating against are confusing self-determination in choosing a mediator with self-determination of the actual outcome of a settlement. During this debate, we wondered aloud whether such conversations regarding the process take place often enough with counsel in the detail required here, or whether the elements of an opening found in our certified mediator rules suffice. The new law smartly includes language that mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body. This would alleviate a problem, though infrequent, of subpoenaing mediators to court in enforcement actions which certainly compromises our neutrality and mostly results in our being excused from such proceedings. See full article from Mediate.com here-- https://bit.ly/2QYWh5v and amended statutory language here-- https://bit.ly/2p4ozPq

Judge Vacates Emergency Order for Mediation Notes

This month, in an extremely rare move, a federal judge in Washington, D.C. first issued and later vacated an emergency order to preserve the notes of a mediation session in which an attorney allegedly threatened a female partner suing the firm for gender discrimination and pay inequity. Plaintiff, Jane Doe, alleges that another of her firm's attorneys illegally threatened retaliation against her during mediation, saying she was going to be terminated. Plaintiff desired the mediator’s notes in order to prove the exchange happened. The mediator was initially ordered to preserve notes and all other documents related to the session, with no indication whether material would ultimately be found relevant or admissible in the case. Such files are typically destroyed after mediation in order to preserve the confidentiality of the mediation process which allows the ability of parties to be open in session. Florida's Mediation Confidentiality and Privilege Act has very limited exceptions. Even in cases where mediation privilege is waived with consent of both parties, any records are produced in chambers in order to protect confidentiality. Allowing mediation notes to be used in lawsuits is quite disturbing and undermines the whole process, according to experts. JAMS, the ADR provider at this mediation, argued Doe should not have requested a preservation order for session notes because it already informed both parties that the notes would not be destroyed since they were subpoenaed. Doe acknowledged that JAMS said it would suspend its policy of destroying the records until issues surrounding the production of the documents in question are resolved, but asked the court to keep the preservation order in place. Plaintiff's motion was premised on an assertion that "a preservation order is necessary to preserve crucial evidence destined for immediate destruction" and that "absent a court order, it is virtually certain that this evidence will be lost." U.S. District Judge Amy Berman Jackson found since that did not appear to be the case, there is no longer any "emergency" warranting relief, and vacated her previous order. See Jane Doe v. Proskauer Rose LLP, case number 1:17-cv-00901 http://www.dcd.uscourts.gov and more reported here-- http://bit.ly/2rUuMAq and http://bit.ly/2rV5RfV

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