Subject of Question

With consent of counsel and parties and stipulation of confidentiality, contact with parties after mediation in an additional effort to resolve case is permissable.

Seving as co-counsel following service as mediator for the same case is not permitted.

Serving as counsel following service as mediator for same case is not permitted.

If a mediator is not paid for services, the mediator may seek payment in any lawful manner.

It is improper for a mediator to provide legal advice even if framed as a question. Information on interest rates fall into category of advice on legal options.

If a party wishes to make a phone call to aid decision- making or agreement, the mediator should remind the party of the confidentiality privilege.

Records retention/disposal requirements are not ethical in nature, and therefore, not within the jurisdiction of the Advisory Panel.

A mediator who is informed in caucus of hidden assets should withdraw from the mediation unless disclosure is made. If a party “misses” a cause of action, a mediator is precluded from giving legal advice to point this out.  The ethical rules apply to non-certified mediators who mediate court-ordered cases.    

It is inappropriate for a certified mediator to use the State Seal or Seal of the Supreme Court of Florida on any advertisements without express permission.

It is unethical to advertise that a mediator will provide a “dispassionate evaluation.”

A mediator who agrees to perform services for a specified fee via court-order, must do so unless relieved of that duty by the court.

When mediation is court-ordered, the parties are required to appear at mediation. If they leave prior to the mediator completing an opening statement, the mediator may report non-appearance. After completion of the opening statement, if the parties choose not to stay at mediation, the mediator may only report impasse to the court. No rule exists which requires a party to negotiate in “good faith.”

A mediator may not disclose information to a party’s attorney who does not attend mediation.

Case referral service involvement.

Mediator should decline serving as a Special Master following mediating a case.

A mediator may not inform a party of a “right to make a claim” for loss of consortium. A mediator may not ask why a claim is not being made, but should determine competency of the party to enter into negotiations and proceed without counsel.

A mediator is not prohibited from soliciting letters of reference from persons for whom s/he has served as a mediator. Evaluations are not categorically excluded from use in advertising so long as the advertising is truthful.

A mediator should not voluntarily report nor testify about threats made during mediation.

A mediator is not prohibited from having contact with either party before or during mediation.

An attorney-mediator may represent a party in a subsequent dissolution of marriage.

Mediating for parties who have been marriage counseling clients is permissible, if both request.

A mediator should not mediate if an armed deputy is necessary.

Notification of the terms of payment must be furnished to the parties within a reasonable period of time prior to the mediation.

A psychologist mediator has no duty to warn an individual of a threat which becomes known during a mediation.

Using the mediation process to incur future business as a realtor is a violation of the rules.

Producing a TV show with real parties in a live mediation is not a violation so long as the parties are informed of their right to confidentiality and waive it.

Information obtained from parties prior to the commencement of mediation which would be confidential if obtained during mediation, is confidential.

Sending follow-up letters with information on a mediator’s services sent after a mediator withdraws or report is filed with the court, does not violate the rules so long as it is done consistent with impartiality and advertising rule requirements.

Retention of mediation records is not an ethical issue.

There are no licensure requirements for mediators, the court may not appoint a corporation as a mediator, but may appoint an individual who is associated with a group.

A mediator may disclose that s/he has mediated with an attorney, claims representatives, or other parties  previously, but is not required to do so unless there is a “close personal relationship” or other circumstance specifically referenced in the rules.

When a meeting take place without the presence of the mediator, it is not a mediation.

Pre-suit mediation agreements which name a specific individual as the exclusive mediator are suspect.

In a Bar Grievance Mediation conducted by a certified mediator, the resolution of a representative’s authority is necessary prior to proceeding with a mediation. Mediation may continue if a valid durable power of attorney is in place, if not, the mediation should be canceled.

It is permissible for an attorney mediator to subsequently serve as an attorney for an individual in an unrelated case against a party who participated in a mediation with this mediator.

A mediator may not report to the court information regarding authority if learned in caucus. A mediator may report to the court that one or more parties did not appear at mediation if learned outside of caucus. A mediator is not prohibited from contact with a party over objection of counsel, but should consider the impact of such decision.

A mediator has discretion regarding providing his/her notes upon request of a party.

With agreement of the parties, a non-lawyer may assist at a court-ordered mediation and participate in the negotiations.

The rules imply that any gift to court personnel is prohibited.

A mediator’s employment as a Deputy Clerk does not inherently cause ethical concerns.

A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases.

Providing training to persons who are later parties to a mediation does not preclude a mediator from mediating so long as disclosure is made and parties request the mediator to serve.

The mediation rules do not prohibit a full-time mediator employed by the county from mediating privately on his/her own time.

There is no statutory or rule requirement that a mediator’s notes taken during a family mediation be kept in the file. Any notes which relate to confidential information cannot be part of a public file.

From the information provided, the Advisory Panel finds nothing which precludes a mediator from participating as mediator with the mediation services corporation referenced.

(a) At the conclusion of a family mediation, upon request from an attorney, a mediator may, under certain conditions disclose to the party’s attorney(s) the factual circumstances surrounding a mediation agreement; however, under no circumstances would it be appropriate for a mediator to offer his/her personal opinion about the case.  

(b) A mediator should not voluntarily testify in court regarding information learned in mediation. The mediator may testify if all parties waive their privilege or the court orders the mediator to testify.

Letterhead which includes two names and the statement “Circuit Court Mediation” along with other designations where only one of the named persons are certified constitutes misleading advertising, and therefore, is violative of the rules.

A mediator has an ethical obligation to allow a minimum of two observations of their mediations per year, even if certified in more than one area. With regards to the mentorship requirements, the term “observe” does not refer to co-mediation.

A mediator is not ethically prohibited from signing an agreement to mediate which states that for mediations conducted under the program, the mediator agrees not to voluntarily testify “unless one of the participants makes a genuine threat of physical harm, reports criminal activity... reports fraud or abuse of postal property or suspected child or elder abuse.”  If an issue listed in the statement is revealed during a mediation, the mediator may report the activity without committing an ethical violation.

Pursuant to the rules, the reason for cancellation or postponement should not be explained in the mediator’s report.

The rules adopted in April 2000 do not impose any additional requirements upon the mediator with regard to self-determination, since the addition of the word “protect” to the rule 10.310(a) does not constitute a substantive change.

A mediator should not continue to mediate when a party objects to that mediator. However, if all parties agree and it is feasible, such mediation may continue, under certain circumstances, as a co-mediation, a bifurcated proceeding, or in some other acceptable format.

A mediator is not precluded from mediating a case in which one of the parties previously attended a parenting course taught by the mediator.

The appointment of a non-certified mediator violates procedural rules.

A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases.

Assisting pro se litigants with filling out forms after a mediated settlement agreement.

Rule 10.420(a)(3) requires a mediator to inform mediation participants that mediation communications are confidential, except where disclosure is required by law. There is no requirement to go into detail as to any specific statutory provisions.

A mediator may not compensate another for merely making a referral, but may compensate a colleague or mediation service for actual work performed by that colleague or mediation service.

A mediator should not voluntary agree to testify in a bar grievance proceeding in order to preserve the statutory and court rule confidentiality provisions, unless ordered by a court to do so.

Assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.

(a) and (b)  A mediator should declare an impasse upon request of a party, but need not immediately cancel a mediation because a party calls an attorney or other “extra-mediation source or advisor.”

(c)  A mediator should not report to the court that a party was not mediating in good faith since there is no requirement that a party mediate in good faith. A mediator’s report should be limited to only those matters authorized by applicable court rule.

(d)  The actions of an attorney to a party to mediation are subject to the ethical jurisdiction of the Florida Bar not the MEAC. In addition, a mediator should not voluntarily testify or disclose confidential communications absent a waiver.   

Assisting A non-attorney Florida Supreme Court certified mediator should not disclose communications made during a Florida Bar Grievance Mediation session even if such testimony may be relevant in a subsequent disciplinary proceeding.

(a) Letters to attorneys and other parties advertising one’s services are permissible.

(b) Logo embossed items of minimal value are permissible forms of advertising. Items of greater value, such as embossed golf shirts, may create the appearance of mediator bias, and therefore, should be avoided.

(c) Lunches and golf outings paid for by the mediator for the purpose of developing goodwill and attracting future clients are inappropriate activities.

It is not appropriate for an arbitrary time limit to be imposed for mediation services. While a judge may interrupt the mediation and request that it be concluded, impasse should not be declared if the parties have not reached impasse.

A mediator should not voluntarily prepare an affidavit or voluntarily testify regarding the papers which were brought to mediation based on rules governing impartiality and confidentiality.

(a) Referring cases to and receiving referrals from a firm for a fee may constitute a conflict necessitating the mediator’s withdrawal.

(a) A mediator must disclose former associations, such as previous employment, but is not be required to withdraw unless such past relationship constitutes a clear conflict.