Friday, July 01, 2005

“Is Everything We Say in Mediation Confidential?”

You know the answer and it is . . . . Here’s the latest case providing an exception to confidentiality of communications in a court-ordered mediation. In Quintana v. Jenne, Case No. 03-15443, [11th Cir. 2005], a case from the Southern District of Florida, the issue involved an award of attorney’s fees to a prevailing defendant and whether one of plaintiff’s claims was frivolous.

The defendant did not deny making an offer of settlement during the mediation but maintained that any settlement offer should not be considered because it was made during the court-ordered mediation. A critical factor for the appellate court in evaluating whether a settlement offer militates against a determination of frivolity was the amount of the offer.

Note that Local Rule 16.2 for the U.S. District Court for the Southern District of Florida provides for confidentiality of communications in mediation [PDF page 54 which is page 37 of the Rules]. The Form Order of Referral to Mediation and the Comments which follow the Local Rules provide interesting reading on confidentiality.

All to say, exceptions are just that – exceptions [clever, don’t you think!].

Have a very pleasant and safe 4th of July Holiday Weekend!

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