Suppose, just suppose, the mediator makes a wrongful disclosure of confidential information. Okay, you don’t want to suppose that – then suppose, just suppose, a mediation participant makes the same wrongful disclosure. Still not pleasant, I realize. Yes, mediators have two types of statutory immunity from liability – “absolute” and qualified – F.S. 44.107. That does not necessarily prevent someone from filing a lawsuit. I know, this is not getting better. We now have a Mediation Confidentiality and Privilege Act which provides a civil remedy for its violation in F.S. 44.406. Where is all this going you wonder?
In Woodward v. Jupiter Christian School, Inc., 4D04-3531 [Fla. 4th DCA 2005] decided today, the issue was whether Florida’s “impact rule” applies to a claim for negligent infliction of emotional distress arising out of a breach of a fiduciary duty of confidentiality. Both the majority opinion and the dissenting opinion contain thorough, cogent analyses of the issue. The opinion is well worth reading and to think about whether there is liability for the mediator or mediation participant in the event of a breach of confidentiality. Really, please think critically about the potential here.
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