Florida’s Mediation Confidentiality and Privilege Act defines “Mediation Communication” [F.S. 44.403(1)] 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. The commission of a crime during a mediation is not a mediation communication.
How does “nonverbal conduct intended to make an assertion” work in the real world?
At this time, there are no Florida appellate opinions interpreting this phrase. However, Bridges v. Metromedia Steakhouse Company, L.P. d/b/a Ponderosa Steakhouse, 807 N.E.2d 162 [Ind. Ct. App. 2004] in a case of first impression, is instructive for us. One of the main issues is whether the trial court abused its discretion when it allowed an insurance adjuster to testify regarding the extent of Bridges’ injury based upon her observation during the parties’ mediation.
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