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Advice, Opinions or Information
Mediator Ethics Advisory Opinions

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Opinion

Summary

Rule References

1: 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.

2: 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), Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators
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), Florida Rules for Certified and Court-Appointed Mediators
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, Florida Rules for Certified and Court-Appointed Mediators; Kalof v. Kalof, 28 Fla. L. Weekly D678 (Fla. 3d DCA March 12, 2003)
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
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, Florida Rules for Certified and Court-Appointed Mediators; Opinion 86-8, Fl Bar Ethics Opinions; Rule 10-2.1, Rules Regulating the Florida Bar
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), Florida Rules for Certified and Court-Appointed MediatorsNote: Changes to the rules in 2000 may impact this opinion.
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), Florida Rules for Certified and Court-Appointed MediatorsNote: Changes to the rules in 2000 may impact this opinion.
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), Florida Rules for Certified and Court-Appointed MediatorsNote: Changes to the rules in 2000 may impact this opinion.

Contact


For additional information please contact The Dispute Resolution Center at 850-921-2910 or at DRCmail@flcourts.org.