If you’re going to mediation soon, then you should know that mediation has three big rules in Florida:
- The mediation is voluntary.
- The mediation communications are confidential (with a few exceptions).
- The mediator must remain neutral and impartial throughout the duration of the mediation (since the mediator isn’t a judge and is just there to help the parties communicate effectively with each other).
Each of these rules has been implemented in order to protect the parties. Mediation is all about the parties’ self-determination, meaning that they are the ones guiding the mediation process and the ones who are in control of the mediation process at all times. These rules help to preserve that self-determination.
Let’s look at each of the rules in detail so that you can understand how it applies to mediation.
Mediation is Voluntary
Parties choose whether to go to mediation. In the case of a dispute that hasn’t been filed in court yet, parties who wind up in mediation literally choose to go to mediation in order to try and settle things before having to file a lawsuit.
In situations where parties have filed a lawsuit and are ordered to appear at mediation, the situation is slightly different. Parties must appear at mediation if that’s what the court ordered. However, parties don’t have to participate in the mediation process. They can listen to the mediator’s opening statement and then tell the mediator they don’t want to mediate. In that situation, the case will proceed to trial.
Also, if parties are in a mediation and someone starts to feel uncomfortable for any reason (e.g, they feel unsafe, they don’t believe the mediation is proving to be productive, etc.), then a party can ask the mediator to terminate the mediation right then and there.
The voluntary nature of mediation applies throughout the entire mediation process, so parties are always in control – and always have the choice to continue with a mediation (or not).
Mediation Communications are (Mostly) Confidential
Since the purpose of mediation is to get parties to speak openly with each other so that they’re likely to reach a settlement, most mediation communications are confidential. That way, people can speak freely in a mediation, let their true concerns be known, and hopefully reach a settlement.
For example, settlement offers conveyed at mediation are confidential. Even if the parties don’t settle that day, those settlement offers can’t be repeated in a later trial. Nobody can say, “At mediation, he offered to pay me $100,000!” or “At mediation, he admitted fault!”
The confidential nature of mediation communications applies to any oral or written statement – or even non-verbal conduct intended to make an assertion – that identifies anything people outside of the mediation wouldn’t be able to find out about. (So, as an example, mentioning that “The sky is blue” in mediation doesn’t make that information confidential because people outside of the mediation can discover that.)
There are, however, a few exceptions and exemptions to the rule of confidentiality. For example, if there’s a statute, court rule, agency rule or order requiring certain information to be disclosed, then the parties should be notified of such rule/order and will have to keep in mind that certain information mentioned in the mediation may not remain confidential.
Also, if there is a claim of professional malpractice (e.g., a party thinks his attorney acted inappropriately during the mediation), then the statements made in mediation that are related to that malpractice claim are excluded from the confidentiality provision.
Additionally, if someone mentions that he is: (1) planning, committing, or attempting a crime; (2) concealing ongoing criminal activity; (3) threatening violence of some sort; or (4) abusing a child or elderly person in any way, then that information does not have to remain confidential.
Another key exception is that the parties can choose to exclude certain information from the confidential nature of mediation. Since the parties’ self-determination is the cornerstone of the mediation process, if the parties choose to exclude information from the confidentiality rule, then that information can be disclosed in the way the parties agreed to.
One thing most people don’t realize about the confidential nature of mediation is that, even after a mediation results in a settlement, the parties (and mediator) can’t go home and start detailing the mediation communications to their significant other, family members, or friends.
Caucus Communications are (Mostly) Confidential
During the course of the mediation, the parties may meet with the mediator separately (in a one-on-one scenario). Those one-on-one sessions are called caucus sessions. The information each party discloses to the mediator during their caucus sessions is confidential too. That means the mediator cannot tell the other party what was said in your caucus session – UNLESS the mediator gets permission from you to tell the other party.
Many mediators will ask at the beginning of the mediation if they can, in their discretion, use the information you tell them in caucus as they see fit in order to help the mediation progress. If you agree to this, then know that your mediator will have the ability to repeat any information you tell him in caucus when he goes into a caucus session with the other party.
Of course, you can always tell your mediator during a caucus session if you’re mentioning something you don’t want him to repeat to the other side. The mediator is then prohibited from disclosing that information to the other party. Just don’t forget to tell the mediator what information you want to keep confidential.
Mediators Must Remain Neutral and Impartial
The mediator is not a judge and cannot force the parties to do anything they don’t want to do. Similarly, the mediator is not an advisor for either party. The mediator is simply present to help two people who are fighting communicate effectively with each other.
Consequently, the mediator cannot take sides. Since the mediator has to go back and forth between the parties and keep information confidential for each party, the mediator acts like a neutral filter of information. He is required to remain neutral and impartial throughout the duration of the mediation.
As a result, the mediator cannot answer questions about whether an offer is good, bad, or ugly. A mediator cannot weigh in on who he thinks would win in a court case. A mediator must be unbiased throughout the mediation process so that he doesn’t become an advocate for one party (which would then be detrimental to the other party).
These three rules serve as the basis of mediation in Florida. The rules combine to preserve parties’ self-determination in mediation so that they remain in control of their case and empowered to make decisions on their own behalf.