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Florida continues to lead the nation in mediation.

Florida is the leader in mediation in the U.S. with its strict ethical standards, the Florida mediator certification process, and recent legislation improving confidentiality standards. In fact, in 1995, over 75,000 court-connected cases were mediated (1) and by 2001 this number increased to well over 100,000 cases. (2) In addition, attorneys increasingly request mediation before a court has a chance to order one, meaning before and after a lawsuit has been filed, (3) showing mediation's acceptance and popularity among judges, attorneys, and clients. (4) Consequently, Florida courts have developed an extensive body of case law addressing issues regarding settlement agreements, access to courts, and confidentiality. It is this latter topic which shall be discussed further in this article. Initially, I will describe statute and case law which comprises Florida's mediation laws on confidentiality up to the fall of 2004. Subsequently, I will discuss what led to Florida's reformation of its confidentiality statutes in 2004, including the creation of the Mediation Confidentiality and Privilege Act (MCPA). Finally, I will describe this new MCPA law and any possible resulting consequences.

Confidentiality

The success of mediation rests on the mediator's neutrality and confidentiality, allowing parties to share information, solve problems, build trust, and essentially decide whether to resolve the dispute, without fear of subsequent negative repercussions arising from honest, candid statements shared during the mediation process.

"One of the fundamental axioms of mediation is the importance of confidentiality. It is deemed necessary to foster the neutrality of the mediator and essential if parties are to participate fully in the process." (5) "The assurance of confidentiality is essential to the integrity and success of the [c]ourt's mediation program, and that confidentiality encourages candor between the parties and on the part of the mediator, and confidentiality serves to protect the mediation program from being used as a discovery tool for creative attorneys." (6)

In order for the mediation to have a chance at reaching a settlement, there are generally two prerequisites: first, the parties must have faith in the mediation's neutrality and, second, they must trust in the confidentiality of the process. As a fundamental element of the mediation process, confidentiality has been a hotly debated topic in the courts and among academia. (7)

Florida also felt the debate's repercussions and responded by greatly broadening its narrow confidentiality protection for mediation.

Florida Statutory Confidentiality Protection, Pre-2004

Confidentiality privileges in Florida are statute based and, prior to 2004, created a very narrow approach.8 F.S. Ch. 44 contains the most significant Florida legislation on mediation, providing the basic governing principles. Ch. 44 defines mediation as "a process whereby a ... mediator acts to encourage and facilitate the resolution of a dispute between two or more parties." (9) In order to invoke court-ordered mediation, one party requests mediation and the court, in most civil cases, is obligated to order the parties to mediation. (10)

The confidentiality privilege, extending only to the parties involved, left the mediator exposed. Although the mediator could invoke this privilege on behalf of the parties (similar to the attorney-client privilege), the mediator could not invoke it for himself or herself. (11) On the other hand, Florida's Supreme Court certified mediators, governed by the Florida Rules for Certified and Court-Appointed Mediators, fell under a specific duty of confidentiality. The statutes granted Florida courts wide discretion to enforce a confidentiality privilege, so long as the court-ordered mediation was conducted in accordance with the rules, (12) and these rules explicitly subjected a mediator to removal should he or she breach confidentiality. (13)

Therefore, an obvious inconsistency existed. The statutory privilege for court-ordered mediation prevented anyone from disclosing communications made during the mediation. The rules prevented disclosure unless "obligated by law." To add further confusion, Florida had a law that required mandatory reporting of child, elderly, and individuals with disabilities abuse and/or neglect, (14) which most court-appointed mediators interpreted as requiring them to breach confidentiality in such situations.

In 1991, the Fifth District addressed this tension between the need for confidentiality and the public policy need for revealing abuse without giving any real guidance. In C.R. v. E., 573 So. 2d 1088 (Fla. 5th DCA 1991), a parent alleged that a Catholic priest fondled her minor daughter, and, although the parties agreed to submit their dispute to mediation/arbitration under the Christian Conciliation Services of Central Florida (CCS) forum, which contained a confidentiality provision, the parents viewed the confidentiality agreement as null and void. (15) The church quickly and successfully sought a temporary injunction to prevent the parents from breaching this provision. (16) However, the dissent in the appellate decision strongly argued that, as a matter of public policy, the confidentiality agreement was instead void due to the criminal nature of the priest's act. (17) Evidently, the tension over confidentiality's scope remained.

These rules, statutes, and case law leave some mediation communications exposed and without confidentiality protection, creating an open gap in which the increasingly used voluntary mediations resided. Prior to 2004, these voluntary, noncourt-connected mediations only benefited from confidentiality protection if an explicit confidentiality agreement existed between the mediation participants.

"Florida judges have recognized the importance of confidentiality to mediation and have enforced mediation confidentiality agreements and privileges," also sanctioning those who fail to honor such agreements. (18) In one example, the trial court held that a plaintiff and her attorney violated their mediation report by wilfully breaching its confidentiality provision when they revealed the defending bank's settlement offer. (19) The appellate court affirmed, stating that to allow such behavior to continue without sanctioning would have a "chilling effect upon the mediation process." (20) Therefore, although confidentiality protection could exist with such an agreement, it was not automatic such as that which the court-appointed mediations enjoyed.

As is evident from above, given the many variables, prior to 2004, it was unclear to what extent the privilege applied and when it could be asserted. The more substantive rules protected only court-connected mediations and any confidentiality privileges, whether court-connected or not, were held by the parties, leaving the mediator without any firm privilege. One author, recognizing this disaccord, clearly stated, "The legislature would do well to clarify the confidentiality privilege with careful attention to the experiences and concerns of the mediators, attorneys, judges, and parties." (21) Another author described the issue as follows:

Presently [2003], all statutory coverage of mediation is limited to court-ordered mediation. The statute does not cover pre-suit and voluntary mediation disputes, and they do not fall under the protection of the confidentiality confidentiality privilege. A contractual agreement does provide some measure of protection, but it pales in comparison to Florida's statutory privilege, which approaches an absolute immunity for participants. (22)

The Florida Legislature heard these calls and, in 2004, revamped its mediation confidentiality protections. Moreover, such stirrings for change actually were heard as early as 2002.

The Current Statutory Situation

"In State v. Trull, a circuit court respectfully suggested 'the Legislature review the wisdom of extending confidentiality to noncourt-ordered mediation conducted by certified mediators who are subject to the Florida Rules for Certified and Court-Appointed Mediators.'" (23) In 2002, the Senate Judiciary Committee unanimously approved SB 1226, which subsequently moved through the Children and Families Committee before dying in the House Council for Smarter Government. This family law bill affected mediation confidentiality, creating a firm confidentiality privilege encompassing both the presuit and voluntary mediations for family mediations, with the intention of extending it to all civil cases.

Prior to the Senate's attempt in 2001, the National Conference of Commissioners on Uniform State Laws collaborated the most simple, common, and predictable mediation rules among the 50 states to form the Uniform Mediation Act (UMA). (24) To date, nine states have completely adopted the act with at least three others reviewing it. (25) However, Florida, despite its national leader status in mediation (or because of it), was not one of those states since Florida already had such extensive and substantive mediation guidelines, controls, and flexibility that it feared adopting the UMA would actually lessen the protection it already gave. (26)

Despite Florida's confidence in its own mediation rules, Florida's confidentiality protection was actually weaker. The UMA would create an express confidentiality privilege for all participants, including the mediator, for every form of mediation which the proposal of SB 1226 attempted to remedy. The myriad of court options and procedures in 2002 for family law cases that lacked conformity also motivated Florida, which sought initially to provide some conformity for family court proceedings and alternative dispute procedures, such as mediation. The House report relating to the matching HB 1455 justifies this by stating, "With the increasing volume of family law cases and unrepresented litigants, more attention is being focused on the creation and implementation of alternative dispute resolution options that are less adversarial than the court process." Although SB 1226 failed in the Florida House of Representatives in 2002, the Florida Legislature made up for this later in 2004.

Effective July 1, 2004, Florida enacted MCPA, (27) which was passed unanimously, without debate. (28) Under this new MCPA all mediations, including both court-ordered and noncourt-connected mediations, are granted confidentiality protections under Ch. 44. It makes all mediation communications confidential and all mediation participants, including the mediator, unable to disclose confidential communications (with a few public policy exceptions). In effect, the Florida Legislature managed to finally harmonize mediation confidentiality.

This harmonization extended the confidentiality protection and also created judicial immunity for arbitrators and mediators, with the clarification that it only applies to noncourt-ordered mediations when the "liability arises from the performance of the mediator's duties while acting in the scope of the mediation function." (29) It does grant one straight forward public policy exception: The mediator does not benefit from this immunity should the mediator act in "bad faith or with malicious purpose, or in a manner exhibiting wanton and wilful disregard of human rights, safety, or property." (30)

Ultimately, every mediation communication is now protected, with five explicit public policy exceptions. These exceptions reflect the Fifth District's dissenting opinion in C.R. v. E., which specifically argued that not every communication should receive protection. The five exceptions are 1) if confidentiality is waived by the parties; 2) if the communication is "wilfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence;" 3) statutorily-mandated reporting of either child abuse/neglect or abuse, neglect, or exploitation of elderly/vulnerable persons, but the participant can only disclose such information to the appropriate agency; 4) if one of the parties seeks rescission of a mediated settlement agreement, under ordinary contract law; (31) and 5) to prove professional misconduct or malpractice alleged to have occurred during mediation.

Otherwise the MCPA specifically covers all other communications and mediations, allowing for individual cases to chose to opt out should the voluntary mediation parties decide not to follow the new act. This opt-out option was to "ensure the greatest amount of freedom for mediation parties to structure the mediation process." (32)

The House of Representative's staff analysis provides insight into the legislative intent behind the MCPA. "The purpose of the bill is to provide uniformity and predictability as to which mediation communications will be confidential." (33) The intent was to finally delete inconsistent provisions found in the old mediation act and to clearly define when mediation begins and ends, whether court-connected or not, in order to clarify even further which communications it protects. (34) Now that the legislature has successfully managed to harmonize confidentiality for all mediation, it is unclear what impact this will have on an already extremely active ADR state.

Consequences: The Impact on Florida

The question is: How much has truly changed?

Clearly, the most important impact this new rule has is on the further encouragement and freedom voluntary and presuit mediations enjoy. Parties which fear revelation of mediation communications will not fully participate in any settlement negotiations. The MPCA erases, for the most part, such fears and further encourages parties to openly and frankly participate.

Now parties and mediators alike can rest assured that instead of choosing to opt in for this protection via an agreement, it already exists! Although the parties may yet choose to opt out, failing to take such an initiative results in automatic coverage. Subject to the parties' will, the mediator can rest assured that a court won't require his or her disclosure. The true impact, however, remains to be seen. Parties often rely on their attorneys' counsel who likely will advise them against selecting such an opt-out option. In fact, the parties likely will not know such an option exists and instead will feel comfortable knowing that their freedom to negotiate is securely protected.

The bill will also further curb confidentiality violations and not simply in the nonvoluntary setting, but in the voluntary as well. The MCPA provides equitable relief, attorneys' fees, and mediator's fees should a party breach confidentiality. This enforcement will strengthen voluntary and pre-suit mediations and support their continued growth in Florida. Most importantly, as parties and mediators grow confident in using mediations, with this new protection harmonization, court dockets should benefit, with fewer suits being filed.

However, the Florida Legislature missed an important element: the settlement agreement. Instead of granting this document, often a direct product of the mediation itself, confidentiality protection, the parties must still actively agree that such protection extends to the settlement agreement. Therefore, the burden remains with the parties and their attorneys to adequately protect themselves. Although I herald Florida's ability to remain one step ahead of the other states, this is one area that remains without an automatic protection.

Another possible downside is the lack of criminal standards or clearer definitions for the stipulated public policy exemptions. When is it "child" or "elderly" abuse and at what point does the mediator break confidentiality (i.e. when he or she merely suspects abuse or knows)? How does the mediator determine that an act is rising to the level of planning "a crime, [to] commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence." These public exemptions are obviously necessary for public policy concerns; however, they remain too vague to assist the mediator.

A final downside is the increased mediator malpractice liability which stricter rules will inevitably create. Mediators, subject to stricter confidentiality rules (especially those participating in voluntary and presuit mediations) may find malpractice suits on the increase. This in turn could jeopardize malpractice insurance rates, of which the medical field is acutely aware.

Despite these possible negative effects, overall, the consequences that will arise are further growth in presuit and voluntary mediations and are, thus, extremely positive. From a public policy perspective, granting further protection and freedom for parties to find less litigious methods to resolve their disputes is extremely beneficial. Mediators can finally feel confident in what they must protect, and even those outside the nonvoluntary system can benefit from this predictability (aside from any confusion which may arise from the public policy exemptions). As a result, court dockets can benefit, litigation costs can go down, and Florida will maintain its leadership position in cutting-edge alternative dispute resolution.

Conclusion

Since the recent mediation statutory revisions in response to the obvious gaps, insufficient time has passed for new case law to further define, test, try, and interpret this new MCPA. It will be interesting for practitioners, mediators, and other jurisdictions to closely watch how successful such a pro-mediation/confidentiality environment becomes.

Florida again manages to assert itself as a leader by elaborately strengthening its confidentiality protections. Although at least two other states also provide extensive mediation support, (35) Florida has always been in the forefront. As such, it is an interesting case study of an example of a leading mediation jurisdiction which has successfully intertwined ADR/mediation permanently into its court system through the court-mandated mediations. It has further strengthened this program by protecting the entire mediation process with strong confidentiality rules. Originally a narrow confidentiality protection state, Florida has now grown into a broad protection jurisdiction, providing a sort of haven for mediators, attorneys, and the general public seeking a more cost-effective and private avenue for resolving their disputes.

Despite this haven, mediators may still suffer as courts must continue to define the thresholds in connection to the public policy exemptions, and the increased liability imposed on mediators will likely result in higher malpractice suit rates. Parties should also remain alert to the lack of automatic protection given their settlement agreements. However, Florida is moving in the right direction and providing greater predictability through the confidentiality protection harmonization for nonvoluntary, presuit, and voluntary mediations (i.e., all mediations).

One author wrote, prior to Florida's new MCPA enactment, "Florida did not become a leader in the ADR movement by remaining content with the status quo." (36) Confidentiality remains the cornerstone for the successful promotion of ADR, especially mediation. Apparently, Florida again took the lead. "The extent of confidentiality should be clarified, and the courts should continue their role in maintaining the shield of confidentiality." (37) Florida followed this advice and what remains to be seen is whether the courts will continue to provide that shield. "Now, with the Mediation and Confidentiality and Privilege Act, mediation confidentiality can truly be said to have come into its own." (38)

(1) Sharon Press, Institutionalization: Savior or Saboteur of Mediation?, 24 Fla. St. U. L. Rev. 903, 907 (1997).

(2) Fran L. Tetunic, Florida Mediation Case Law: Two Decades of Maturation, 28 NOVA L. REV. 87, 90 (Fall 2003).

(3) Sharon Press, Institutionalization: Savior or Saboteur of Mediation?, 24 Fla. St. U. L. Rev. at 908.

(4) Jon Mills, Principles for Constitutions & Institutions in Promoting the Rule of Law, 16 FLA. J. INT'L L. 115, 122 (Mar. 2004).

(5) Ellen E. Deason, Enforcing Mediated Settlement Agreements: Contract Law Collides with Confidentiality, 35 U.C. DAVIS L. Rev. 33, 35 (2001).

(6) In re Anonymous, 283 F.3d 627, 636 (4th Cir. 2002); Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 930 (2d Cir. 1979).

(7) Paul Dayton Johnson, Jr., Confidentiality in Mediation: What Can Florida Glean from the Uniform Mediation Act?, 30 Fla. St. U. L. Rev. 487, 487-488 (Spring 2003).

(8) Id. at 493.

(9) FLA. STAT. [section] 44.1011(2) (2002).

(10) FLA. STAT. [section] 44.1011(2)(a) (2002). Some exceptions were given which included landlord-tenant disputes, medical malpractice, and a claim for debt.

(11) FLA. STAT. [section] 44.102(3) (2002).

(12) FLA. STAT. [section] 44.103(1) (2002); Johnson, Confidentiality in Mediation: What Can Florida Glean from the Uniform Mediation Act?, 30 Fla. St. U. L. Rev. at 494 (Spring 2003).

(13) FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.260.

(14) Fran L. Tetunic, Florida Mediation Case Law: Two Decades of Maturation, 28 NOVA L. REV. at 94.

(15) C.R. V. E., 573 So. 2d at 1089.

(16) Id. at 1088.

(17) FLA. STAT. [section] 415.504 (1989). The dissent stated, "any person ... who knows, or has reasonable cause to suspect, that a child is ... abused ... shall report such knowledge or suspicion to the (Department of Health and Rehabilitative Services)...."

(18) Tetunic, Florida Mediation Case Law: Two Decades of Maturation, 28 NOVA L. REV. at 97.

(19) Paranzino v. Barnett Bank, 690 So. 2d 725, 726 (Fla. 4th D.C.A. 1997).

(20) Id. at 729.

(21) Tetunic, Florida Mediation Case Law: Two Decades of Maturation, 28 NOVA L. REV. at 97.

(22) Johnson, Confidentiality in Mediation: What Can Florida Glean from the Uniform Mediation Act?, 30 Fla. St. U. L. Rev at 496.

(23) State v. Trull, 9 Fla. L. Weekly Supp. D289 (7th Cir. Apr. 30, 2002).

(24) Johnson, Confidentiality in Mediation: What Can Florida Glean from the Uniform Mediation Act?, 30 Fla. St. U. L. Rev at 488; Uniform Mediation Act, www.mediate. com.

(25) Association for Conflict Resolution, ACR and the Uniform Mediation Act, www.acrnet.org (Jun. 26, 2006).

(26) ABA Section of Environment, Energy, and Resources, www.abanet.org/environ/ committees/adr/uma.shtml.

(27) FLA. STAT. [section][section] 44.401-44.406 (2004).

(28) Robert J. Fischer et al., State Legislative Update, 2004 J. DISP. RESOL. 429, 430 (2005).

(29) Id.

(30) FLA. STAT. [section] 44.107(2)(c) (2002).

(31) E.g., fraud, misrepresentation, mistake, disability/incapacity, unconscionability/ illegality, or duress.

(32) H.R. 1765, 2004 Sess., Staff Analysis at 1 (Fla. 2004).

(33) Id. at 2.

(34) Id. at 2-3.

(35) E.g., Texas and California.

(36) Johnson, Confidentiality in Mediation: What Can Florida Glean from the Uniform Mediation Act?, 30 FLA. St. U. L. REV. at 501-502.

(37) Tetunic, Florida Mediation Case Law: Two Decades of Maturation, 28 NOVA L. REV. at 142.

(38) Fl. Cir.-Civ. Mediator Society, www. floridamediators.org/library/MCP_ACT_article_for_HCBA.pdf.

Lisa Bench Nieuwveld is an associate in the international commercial arbitration group of Van Mens & Wisselink, located in Rotterdam, The Netherlands.
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