Wednesday, November 10, 2004

Florida's New Mediation Confidentiality & Privilege Act

Effective July 1, 2004, Florida has adopted a new Mediation Confidentiality and Privilege Act [F.S. 44.401-44.406]. The prior law [F.S. 44.102 (3) and (4)] did not provide for confidentiality and privilege in non court-ordered mediations. In an effort to address this inconsistency and bring clarity to the issue of confidendiality and privilege in mediation the new statute was adopted.

The overall structure of the statute is divided into four main parts:

  • Scope - identifying those types of mediations to which the statute applies;
  • Definitions - providing definitions for mediation communication, mediation participant, mediation party, mediator and subsequent proceeding;
  • Duration of mediation - establishing when mediation begins and when it ends in both court-ordered and non court-ordered mediations;
  • Confidentiality of mediation communications; the privilege; exceptions. A completely new cause of action has been created to provide a remedy to anyone who is damaged as a result of a breach of confidentiality by a mediation participant.

Perry S. Itkin