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Home :: FAQ :: Personal Injury

Will my statements at mediation be confidential?

According to the Mediation Confidentiality and Privilege Act, effective July 1, 2004, mediations conducted in the state of Florida are subject to new provisions relating to confidentiality and privilege. 

Briefly, the law creates the “Mediation Confidentiality and Privilege Act” that applies to any mediation:

  1. Required by statute, court rule, agency rule or order, oral or written case specific court order, or court administrative order;
  2. Conducted under the act by express agreement of the mediation parties; or
  3. Facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by the act.

The mediation parties may agree in writing that any or all specified provisions of the act will not apply to all or part of a mediation proceeding.  The terms “mediation participant”, “mediation party”, “subsequent proceeding” and “mediation communication are defined, the latter as “an oral” or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation.”  In addition, it should be noted that the commission of a crime during a mediation is not a mediation communication.

Except as otherwise provided, all mediation communications shall be confidential and a mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.  A violation of confidentiality may be remedied by a civil action or, if the mediation is court-ordered, may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney fees and mediator fees.  The civil action, which may be brought by any party, for a knowing and willful disclosure of confidential information, could subject the violator to equitable relief and compensatory damages, as well as attorney fees and costs.

Each mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.

The law provides exception to confidentiality and privilege in relation to the following communications:

  1. A signed written agreement reached during a mediation (unless otherwise agree)
  2. A communication that is willfully used to plan a crime, commit, or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.
  3. The making of a mandatory report of child abuse or neglect or elder abuse, neglect or exploitation, solely for the purpose of making the mandatory report to the entity requiring the report.
  4. A communication used to report, prove, or disprove professional malpractice or misconduct occurring during the mediation solely for the purpose of the internal body investigating the misconduct or the malpractice proceeding.
  5. A communication establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.

There also is no privilege and no confidentiality if it has been waived by all parties.  Communications subject to disclosure remain confidential and are not discoverable or admissible for any other purpose, unless otherwise permitted by law.  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.

Other provisions of the mediation law extend mediator judicial immunity to trainees fulfilling mentor ship requirements for mediator certification by the Supreme Court and provide limited immunity for a mediator in relation to any non-court-ordered mediation within the scope of the Mediation Confidentiality and Privilege Act.