MEAC Opinions - Advice, Opinions or Information

Opinion

Subject Matter

Current Cites

2022-003

1) Yes, it is ethical for a mediator to allow an agreed party to draft the agreement and to only submit a report of agreement, partial agreement, or no agreement to the court.

2) No, a mediation report may only be completed and submitted by the mediator. Yes, if any agreement negotiated at mediation remains unsigned by the parties, using the document in court would breach confidentiality.

3) Parties to litigation not participating in mediation cannot be required to sign an agreement or stipulation. A mediator does not have the authority to require any party or participant to sign any agreement

Section 44.405, Florida Statues.

Rule 1.730(b), Florida Rules of Civil Procedure.

Rules 10.220, 10.230, 10.310(b), 10.330(a)(c), 10.340(d), 10.360, 10.420, Florida Rules for Certified and Court-Appointed Mediators.

MEAC Opinions 2021-008, 2020-002, 2017-006, 2015-005, 2004-004.

2022-002

The action proposed by the inquiring mediator is not aligned with the rules of certified and court-appointed mediators and violates the spirit of the mediation process. A mediator may not sign an agreement on any party’s behalf, even if the mediator obtains a recorded verbal agreement granting the mediator express permission to sign for the party or parties.

Rules 10.220, 10.310(a) and committee notes, 10.340(d), and 10.420(c) and committee notes, Florida Rules for Certified and Court Appointed Mediators. In Re: Amendments to Florida Rules of Civil Procedure, Florida Rules of General Practice and Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, and Florida Rules of Appellate Procedure, No. SC21-990 (July 14, 2022).

In Re: Amendments to Florida Rules of Juvenile Procedure, Florida Family Law Rules of Procedure, and Florida Supreme Court Approved Family Law Forms, No. SC22-1 (July 14, 2022). Florida Statute 44.404(2)(a).

MEAC Opinions 2003-010, 2004-004, 2011-001, 2011-004, 2013-009, and 2015-005.

2021-010

Mediation is a voluntary, consensual process. Mediation participants control the outcome of mediation even though they may be required to participate by statute, court order, the rules of court, or contractual obligation.

The mediator's role includes identifying issues, reducing obstacles to communication, and maximising alternative to help the parties choose whether to reach a voluntary agreement. In so doing, however, the mediator must maintain impartiality and refrain from coercion and giving legal advice.

Rules 10.220, 10310, 10.370, and 10.520, Florida Rules for Certified and Court-Appointed Mediators

MEAC Opinions 2010-006 and 2018-002

2019-003

Mediation provides a forum for consensual dispute resolution by the parties. It is not an adjudicatory procedure. The mediator's responsibility to the parties includes honoring their right of self-determination; acting with impartiality; and avoiding coercion, improper influence and conflicts of interest. Mediators should mediate cased that they are competent to mediate.

Rules 10.220, 10.310, 10.330, 10.370, 10.620, 10.630, and 10.640, Florida Rules for Certified and Court-Appointed Mediators

MQAP Opinions 95-002 and 2008-006

2019-002

Decisions made during mediation are to be made by the parties. While the mediator is to assist the parties in reaching an agreement, the mediator must do so in a manner to preserve the self determination of the parties.

Rules 10.230, 10.300, 10.310(b), 10.370(b) & (c), 10.420(b), Florida Rules for Certified and Court-Appointed Mediators

MQAP 95-002

2018-002

A mediator shall maintain impartiality throughout the mediation process.  Impartiality means freedom from favoritism or bias in word, action or appearance and includes a commitment to assist all parties, as opposed to any one individual.

Rules 10.330(a), 10.370(a) and (c), and 10.420(b), Florida Rules for Certified and Court-Appointed Mediators

MQAP 1995-002

2017-011

Consistent with MEAC Opinions 2013-006 and 2010-004 and rule 10.220, Florida Rules for Certified and Court-Appointed Mediators, one of the roles of the mediator is to assist the parties in the identification of issues.

Sections 44.1011(2) and 44.403(4), Florida Statutes

Rules 10.220, 10.310, 10.330, 10.370, Florida Rules for Certified and Court-Appointed Mediators

MEAC Opinions 2013-006 and 2010-004

2017-001

A mediator may not refer a party to a specific lawyer or not-for-profit advocacy group when contacted by the party after a mediation.  Such a referral would be inconsistent with the mediator’s duty to maintain impartiality throughout the mediation process. 

Rules 10.330(a), 10.370(b) and 10.620, Florida Rules for Certified and Court-Appointed Mediators

2010-006

Answer to Question One:  A mediator may discuss and “explore settlement alternatives” with the parties as long as the activities by which the mediator does so is consistent with the Rules for Certified and Court-Appointed Mediators.

Answer to Question Two:  The answer to question one above does depend on whether the mediator was in caucus with the parties.

Rules 10.220, 10.310, 10.330, 10.370, 10.370(c)

2009-007

Consistent with the standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.  If the mediator’s explanation of a judgment is consistent with Rule 10.370(a), then the mediator may provide that information.  

Rules 10.220, 10.310(a), 10.330(a), 10.420(b)(3), 10.370(a)-(c) and 10.410

2008-004

While the MEAC is unable to state that the described impasse avoidance techniques are per se ethical, it acknowledges that the techniques may at times be ethically utilized by a mediator.  Any mediator choosing to proceed with either approach must do so only after first considering the various limiting provisions in the rules and the totality of the circumstances. 

Rules 10.210, 10.220, 10.310(a), 10.330(a), 10.370(a) and (c), 10.420(b)

Committee Notes to Rule 10.370

2008-002

Although the rules do not explicitly contain a prohibition against asking the question you pose, a mediator should not engage in such conduct. A representative of a credit card company overhearing a mediator telling an opposing party to contact a member of Congress regarding interest rates may have some (legitimate) concerns regarding the mediator’s impartiality in the mediation which just concluded.  These concerns would also extend to any subsequent mediations that the mediator may conduct with that representative.

Rules 10.330, 10.340(a), Committee Notes to rule 10.330

2006-006

A mediator is obligated to advise a party of the right to seek counsel, if the mediator believes that the party does not understand or appreciate how an agreement may adversely affect the party’s legal rights or obligations, but is prohibited from giving "a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issues."

Rules 10.330, 10.310(a), and 10.370

2003-011

All of the Standards of Professional Conduct for Mediators found in Part II, Florida Rules for Certified and Court-Appointed Mediators, are applicable to all types of certified and court-appointed mediators.  There is no exception for county mediators in relation to the provision prohibiting mediators from predicting how the court will decide a case.

Rules 10.200, 10.310. 10.330 and 10.370(c)

2003-002

A certified mediator does not have an ethical obligation to advise a party without an attorney in a family mediation where an agreement in signed to take the signed agreement to an attorney.

Rules 10.310(a), 10.330(a), 10.370(b), 10.410 and 10.520

Kalof v. Kalof, 28 Fla. L. Weekly D678 (Fla. 3d DCA March 12, 2003)

2001-003

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.

MEAC 2000-009

2000-009

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.

Rules 10.330(c), 10.370, 10.380(c) and 10.650

Opinion 86-8, Fl Bar Ethics Opinions

Rule 10-2.1, Rules Regulating the Florida Bar

96-003

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.

Rules 10.310(a) - (b), 10.340(d), 10.370(a) - (b), 10.420(b)

Note: Changes to the rules in 2000 may impact this opinion. 

95-005

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.    

Rules 10.200, 10.310(c), 10.330, 10.360(b), 10.370(a) - (b), 10.420(b)

Note: Changes to the rules in 2000 may impact this opinion. 

95-002

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

Rules 10.220, 10.230, 10.310(b), 10.330, 10.370(a) - (b)

Note: Changes to the rules in 2000 may impact this opinion.