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

Orlando Mediator's 400th Post! Standard of Review for Settlements De Novo

A District Court of Appeal (DCA) in Florida has concluded the standard of review of a trial court’s decision under section 44.405(4)(a)5. of the Mediation Confidentiality and Privilege Act, regarding whether a confidentiality or privilege attaches to a mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation,” is de novo. In the recent decision of Brickell Financial Services - Motor Club, Inc. v. Road Transportation, LLC, on remand the trial court was instructed by the Fourth DCA to weigh the settlement accounting, along with the parties’ mediation communications, and any other admissible evidence, in determining whether a meeting of the minds occurred regarding the dollar amount to which the term “Settlement Sum” referred and, if so, what that amount was. They cited a prior decision in DR Lakes Inc. v. Brandsmart U.S.A. of West Palm Beach, Inc., 819 So. 2d 971 (Fla. 4th DCA 2002), which pre-dated the legislature’s enactment of section 44.405 in 2004, but interpreted section 44.405’s predecessor, section 44.102(3), Florida Statutes (2001). That was after initially stating “all mediation communications shall be confidential,” the legislature created an exception in section 44.405(4)(a)5. for any mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.” The Fourth DCA reminded parties and the trial court that a party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement. See more here-- https://bit.ly/3eyYP5I

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

What goes on in mediation, stays in mediation

Lately, there are reports in other states of settlements being unsealed. Typically, parties in a lawsuit agree among themselves, without assistance of courts, to craft a settlement agreement with a confidentiality clause and, if necessary, enforce such by separate contract action. Counsel may not completely control confidentiality if public officials or public entities are involved or if it may impact public health and safety. In the recent case of a Kansas boy who died in a water slide accident (full disclosure: I used to represent Wet 'n Wild water park in Orlando), the $20 million settlement with the family was confidential until the local paper got involved. The Kansas City Star intervened, arguing that the amounts paid by each defendant should be released to ensure those responsible for the minor’s death were held publicly accountable. The settlement is believed to be the largest for a minor ever in that region. The boy's father is apparently a Kansas legislator whose efforts increased regulation of amusement parks as a result. A companion case of unrelated adult sisters also settled. The newspaper argued the parties responsible should be held accountable such that a financial record of the settlement is needed. Reportedly, the ride will also be taken down as part of the terms. In Florida, our Mediation Confidentiality and Privilege Act governs the disclosure of such information. Confidentiality or privilege against disclosure of mediation communications must be waived by all parties, with limited exceptions and civil remedies are available for violations. Only 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. Of course, petitions for approval of settlements are required for minors and contain details of the facts of a case, the issues of liability, the monetary amount of damages, and settlement amount sought, as well as attorney’s fees and costs. A judge then evaluates the settlement terms to assess whether they are in the best interests of the minor. It is important to note that the parent or guardian is obligated under the law to act in the best interests of the child. However, these deals often are confidential and statutorily exempt from the provisions of public records laws. See more here: http://bit.ly/2q2uzrk and http://bit.ly/2qvFqgb and http://bit.ly/2qYqg0j and http://bit.ly/2qYqg0j

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