Is Mediation Privileged?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, October 19, 2015.

What happens in mediation stays in mediation. Sort of. The truth is that while confidentiality is one of the hallmarks of mediation, confidentiality is not absolute.

Mediation is a process where a neutral, third person – called a mediator – encourages and facilitates resolving your case. Consider it an informal meeting in which the goal is to reach a voluntary agreement.

A mediation privilege does exist in Florida, which means that in general, whatever is said during mediation is considered privileged – and can’t be disclosed to the court, or other people.

The law is found in the Mediation Confidentiality and Privilege Act, which Florida enacted in 2004. Generally, all communications during mediation are confidential.

If you disclose things to others, you could be subject to sanctions, equitable relief, compensatory damages, attorneys’ fees, mediator’s fees, and costs incurred in the mediation proceeding.

The confidentiality law also means you can refuse to testify, and prevent others from testifying about mediation communications. But, there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless you agree otherwise.

‘There is a strong reason to protect discussions during mediation; however, there is an equally strong policy argument to promote the enforcement of settlement agreements. If the agreement is needed to show fraud, duress or illegality, then the settlement agreement can be admissible in court.’

I’ve written about prenuptial agreements and post-nuptial agreements before. The act provides two other significant exceptions to confidentiality for mediation communications: those “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence”, and those intended “for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.”

The benefit of this confidentiality is that it allows parties the ability to speak more freely during mediation, without fear that what they say will affect the outcome of their case.

Meet with your attorney before the mediation to review any outstanding questions you may have about the process, and about the mediation privilege.