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2008 MEDIATOR ETHICS ADVISORY COMMITTEE OPINIONS


A. It is ethically inappropriate for a mediator to make the determination as to whether a party has complied with a judge's discovery order.

 

B. It would be inappropriate for a mediator to cancel mediation merely because of the assertion that one party has not complied with a discovery order.

 

C. Since it is not appropriate for the mediator to make the determination to cancel the mediation, the mediator would not be in a position of filing a report with the judge stating that the mediator did so.

 

D. The question ["Is it appropriate for a mediation unit to prepare a Rule to Show Cause for the judge's signature based upon an individual mediator's outcome report that states that the plaintiff did not comply with the judge's discovery order?"] is beyond the jurisdiction of the MEAC; however, care should be taken to ensure that the unit does not provide any service that would cause mediators to compromise their integrity or impartiality.



Although the rules do not explicitly contain such a prohibition [against actions outside of the mediation process which might give the appearance of partiality], a mediator should not engage in such conduct.


A mediator is not prohibited from including accurate information in marketing material so long as it is not misleading; therefore, the mediator may use the information and/or logo, if it is clear that the rating relates to the attorney-mediator's law practice (as opposed to his/her mediation practice).


While the MEAC is unable to state that the above-described impasse avoidance techniques ["silver bullet/baseball"  or "the mediator's offer"] 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.



A. A mediator may ethically engage in unsolicited direct marketing to the parties and/or attorneys in dissolution of marriage cases using information posted online by court clerks, but may do so only in strict compliance with Rule 10.610 governing mediator advertising. Any mediator engaging in this practice must also bear in mind the extent to which mishandling such communication may damage the reputation of individual mediators and community acceptance of the profession at large.
 
B. It is not ethical for a mediator to send out a notice of mediation directly to the parties in the manner suggested in the inquiry.


A. It is not permissible for a mediator to dictate, over the parties' objections, who participates in a mediation caucus.

 
B. If someone participates in a mediation, either a full session or just a caucus, that person is a mediation participant subject to the confidentiality requirements under Florida's Mediation Confidentiality and Privilege Act. Under the statute, there is no violation of confidentiality associated with disclosing mediation communications to another mediation participant.


A clear conflict of interest exists whenever a law firm in which a mediator is a partner is part of an adversary process involving a party to the mediation regardless of the size of the law firm, the location of other cases, or the mediator's lack of personal involvement.


There is a clear conflict of interest when a mediator, having mediated a dispute, subsequently represents or otherwise takes a position for or against a former party in a related matter.