Written by: Alfred A. LaSorte, Jr., P.A.
Published: April 2024

Lawyers often tell their clients that mediation communications are privileged.  But Florida’s Mediation Confidentiality and Privilege Act, F.S. Section 44.401 et. seq., has some exceptions. 

First, the rules:

F.S. 44.405(1): “Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.”

F.S. 44.405(2): “A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.”  

“Mediation communication” includes “an oral or written statement, or nonverbal conduct intended to make an assertion,” F.S. 44.403(1), even a nod or shake of the head intended to convey “yes” or “no.”  

But it doesn’t include a participant’s observation of what happens, like watching a party leave in the middle of mediation.

A mediator “is responsible for …preserving confidentiality…” Florida Rules for Certified and Court-Appointed Mediators 10.300

“A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to be all parties.” Florida Rules for Certified and Court-Appointed Mediators Rule 10.360.  And “communications made during the process are confidential, except where disclosure is required or permitted by law. FRCCM Rule 10.420(a)(3).”

Now, the exceptions:

– Committing a crime or threatening violence during mediation is specifically excluded from the privilege. F.S. Section 44.403(1). Per F.S. 44.405(4)(a)(2), a communication “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence” is excluded. So threats of violence can be reported.

– Signed mediation written agreements. F.S. 44.405(4)(a)

– Waiver.  F.S. 44.405(4)(a)(1)

– A communication requiring “a mandatory report under Florida’s protective services laws.  F.S. 44.405(4)(a)(3)

– A communication “offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding.” F.S. 44.405(4)(a)(4).

– A communication “offered for the limited purpose of establishing or refuting the voiding or reforming of a settlement agreement…” F.S. 44.405(4)(a)(5)

– A communication “offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.” F.S. 44.405(4)(a)(6).

Whether a mediator may disclose things occurring in a mediation over a party’s objection  is quite fact-dependent.  

Some examples:

1. In private caucus, lawyer tells mediator his client has no authority to make any settlement offer, in any amount.

“Communication”?  Yes. An oral statement by a participant (lawyer) to another mediation participant (mediator).

Made during mediation?  Yes.

Do any exceptions apply?  No.

So, is it privileged?  Yes.

2. Mediator notices a party’s absence from the mediation, not through any “communication,” but because she sees them leave. Observations of what occurs (or doesn’t) are not “mediation communications,” therefore not privileged.

For a discussion of a mediator’s observations, versus mediation communications, see MEAC 2006-008.

3. In private caucus, party says he intends to physically attack the opposing party after the mediation concludes.

Privileged?  No, since it falls within the F.S. 44.405(4)(a)(1) exception for communications “[w]illfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.”

4. Insurance adjuster informs mediator that her most recent offer constitutes the extent of her settlement authority, and that she is unable to make any higher offer.

Communication?  Yes.

Made during mediation?  Yes.

Do any exceptions apply? No. MEAC Opinion 2006-003 states that while a mediator may report a party’s or representative’s failure to physically appear, it would be an ethical violation to report that a party or insurance representative who did appear “did not have full settlement authority.”

5. Counsel for one mediation party feels the opposing party’s offer constitutes “bad faith.” She files a motion for sanctions and subpoenas mediator to testify.

Is opposing party’s offer a communication?  Yes.

Made during mediation?  Yes.

Do any exceptions apply?  No. The trial court should bar mediator’s testimony.  And note – there is no “good faith” requirement in mediations anyway.  See, Avril v. Civilmar, 605 So.2d 988 (Fla. 4th DCA 1992).

Florida Mediator Ethics Advisory Committee Opinion 99-012B notes that “if subpoenaed, a mediator should either file a motion for protective order, or notify the judge in accordance with local procedures, that the mediator is statutorily required to maintain the confidentiality of mediation proceedings.”  But it concludes that if ordered to testify “the better approach would be to follow the court order,” citing a prior MEAC ruling, MQAP Opinion 96-005.

The opinion further explains that if this court order gets reversed after mediator’s testimony, the aggrieved party can always seek to have the testimony stricken.

After a long career at Shutts & Bowen LLP as a commercial/real estate litigator, Mr. LaSorte is now exclusively a mediator (500+ cases) and expert witness. (561) 286-7994;  [email protected]. Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com)

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/

Written by: Donna Greenspan Solomon
Published: March 2024

Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023).  District court must stay proceedings while interlocutory appeal as to arbitrability is ongoing.

NuVasive, Inc. v. Absolute Med., LLC, 71 F.4th 861 (11th Cir. 2023).  The Federal Arbitration Act’s three-month deadline for moving to vacate a final arbitration award is subject to equitable tolling, an extraordinary remedy that is appropriate where a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.

Bedgood v. Wyndham Vacation Resorts, Inc., 88 F.4th 1355 (11th Cir. 2023).  A party that seeks to compel arbitration, but whose policies do not comply with the rules and policies of the arbitral forum, cannot compel arbitration, and accordingly, may be forced to litigate the claims it sought to arbitrate.

Smith v. Int’l Bus. Machines Corp., 22-11928, 2023 WL 3244583, at *3 (11th Cir. May 4, 2023).  Plaintiff was a day late in demanding arbitration where she submitted demand to JAMS by the filing deadline but did not submit it to employer until the following day.

Cosgun v. Seabourn Cruise Line Ltd. Inc., 23-11396, 2023 WL 4112993, at *1 (11th Cir. June 22, 2023).  An appeal may not be taken from an interlocutory order that compels arbitration and stays, rather than dismisses, the action.

Bedgood v. Wyndham Vacation Resorts, Inc., 88 F.4th 1355 (11th Cir. 2023).  The Federal Arbitration Act (FAA) provision prescribes two conditions to relief on a motion to direct arbitration, which are separate but causally related: first, the party resisting arbitration must have failed, neglected, or refused to arbitrate, and second, the party seeking to direct arbitration must have been aggrieved by that failure, neglect, or refusal.

SICIS N. Am., Inc. v. Sadie’s Hideaway, LLC, 368 So. 3d 1052 (Fla. 1st DCA 2023).  Property owner was bound to arbitration provision in agreement between general contractor and tile manufacturer where owner authorized contractor to act as its agent in purchasing tiles from manufacturer.

Beyond Billing, Inc. v. Spine & Orthopedic Ctr., P.C., 362 So. 3d 256 (Fla. 2d DCA 2023).  Parties’ execution of joint stipulated motion to amend case management order, within 20 days of arbitration award, indicated parties’ mutual desire and intent to proceed to trial, and thus trial court did not have duty to enter final judgment on arbitration award when no motion for trial de novo was filed within 20-day period.

Allison v. Grand at Olde Carrollwood Condo. Ass’n, Inc., 369 So. 3d 1200, 1204 (Fla. 2d DCA 2023).  Following non-binding arbitration, the trial court failed to properly conduct a trial de novo where it limited its role to reviewing the arbitrator’s decision as if it were sitting in an appellate capacity.Alan v. Sandy T. Fox, P.A., 48 Fla. L. Weekly D2099 (Fla. 3d DCA Nov. 1, 2023).  Rule 9.130(a)(3)(C)(iv), which designates non-final orders that “determine … the entitlement of a party to arbitration” as appealable, does not encompass matters collateral to entitlement.

Seduction Cosmetic Ctr. Corp. v. Dunbar, 48 Fla. L. Weekly D2010 (Fla. 3d DCA Oct. 18, 2023).  Trial court was required to hold evidentiary hearing to resolve parties’ competing contentions as to whether arbitration clause was triggered.

Labelle v. Berenson LLP, 3D22-2113, 2023 WL 9051720, at *1 (Fla. 3d DCA Dec. 26, 2023).  Where an arbitration provision in an attorney’s fee agreement fails to include the requisite notice to seek independent counsel, the provision is in violation of Florida Bar Rule 4–1.5(i) and unenforceable on its face. 

Barton Protective Services, LLC v. Redmon, 48 Fla. L. Weekly D1560 (Fla. 3d DCA Aug. 9, 2023).  Defendant presented colorable entitlement to relief from judgment based on excusable neglect after failing to timely move for trial de novo following nonbinding arbitration, and thus trial court exceeded its discretion in failing to conduct evidentiary hearing.

M.P. v. Guiribitey Cosmetic & Beauty Inst., Inc., 48 Fla. L. Weekly D1947 (Fla. 3d DCA Oct. 4, 2023).  A litigant must establish both procedural and substantive unconscionability to avoid arbitration.

Factor Brokers, Inc. v. J&C Enterprises, Inc., 48 Fla. L. Weekly D1874 (Fla. 3^rd DCA Sep. 20, 2023).  A nonsignatory to an arbitration agreement can be bound to it via assignment.  However, an evidentiary hearing is required for a court to determine the existence and validity of the assignment.

Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or [email protected] or by visiting www.solomonappeals.com. 

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For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Written by: David Lucey
Published: February 2024

Mediation participants and counsel often ask for the mediator’s opinions and/or advice.

These requests create potential ethical issues. Mediation is a consensual process wherein the participants reach a resolution of their choosing with the mediator acting only to facilitate that process.

Rule 10.310(a) reads as follows:

(a) Decision-Making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.”

See also the Committee Notes to Rule 10.310 that read in relevant part:

“It is critical that the parties’ right to self-determination (a free and informed choice to agree or not to agree) is preserved during all phases of mediation. A mediator must not substitute the judgment of the mediator for the judgment of the parties…”

However, Rule 10.370(a)  reads in relevant part:

“(a) Providing Information. Consistent with standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.”

But see 10.370(c);

“(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.”

Where is the line between permissible sharing information about the merits of the case and impermissible predictions about the outcome?

STICK TO FACTS when responding to questions such as following;

“What will going to trial cost?”- Does the mediator have direct experience in trying a similar case? If so, one may share that experience but emphasize that each case is unique.

“What will Judge X do about issue Y?”; A mediator may presumably share his/her experience with Judge X on issue Y, as long as the facts and issues are the same or very similar, but again emphasize each case is its own creature.   

“What do you think we should do?” DANGER! Refer to the exact language in Rule 10.370 (c). Answer that question with a series of questions. Make sure the series includes questions about what outcome the party desires and what they are willing to do or give up to achieve that outcome.

The interplay of Rules 10.310 and 10.370 requires a careful balance. A mediator who does not provide any input based on his or her knowledge or experience is nothing more than an overpriced messenger service. However, a mediator must not advocate or appear to advocate for any particular outcome.

If a party or their attorney truly desires an evaluation, a mediator may offer his / her services for early neutral evaluation (ENE), but he/she must CLEARLY STATE in the retainer/engagement letter that this is the nature and purpose of the services. The retainer/engagement letter should specifically state that the ENE process will NOT satisfy an order that the parties engage in mediation. I strongly recommend having the parties and their counsel sign and initial any such retainer.

All mediators have a responsibility to the parties, to the Courts and to the profession to maintain mediation as a truly impartial and consensual process wherein the parties determine their own outcome.  Any perception of bias or coercion by any mediator is not only contrary to the rules but will also cause the public to lose faith in the mediation process. By avoiding any temptation to push parties toward the mediator’s preferred result the mediator will, in the long term, enjoy better results, happier clients and will help uphold the purpose of the mediation process.

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David Lucey has been a member of the Florida bar since 1990 and a Florida Supreme Court certified circuit court mediator since 2009. Mr. Lucey’s practice, as both Attorney and Mediator, encompasses multiple areas, including civil, litigation, family law, and condominium/homeowners’ association law. Mr. Lucey is available at 561-632-6921 or DCLLAW[email protected].  For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.