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Confidentiality in Mediation: Not so Fast!

I strongly urge you to carefully read Florida Statutes section 44.406: Confidentiality; civil remedies. It reads in part:

(1) Any mediation participant who knowingly and willfully discloses a mediation communication in violation of s.44.405 shall, upon application by any party to a court of competent jurisdiction, be subject to remedies, including:

(a) Equitable relief.

(b) Compensatory damages.

(c) Attorney’s fees, mediator’s fees, and costs incurred in the mediation proceeding.

(d) Reasonable attorney’s fees and costs incurred in the application for remedies under this section.

So, many of you might conclude that a caution to you or your client to keep what happens in a mediation confidential should do the trick. What happens when you settle your case and it goes to agreement? Herein lies some danger.

Unless the parties have agreed otherwise, written communications included in a mediated agreement that has been signed by all parties and counsel are not confidential.

Section 44.405 (4)(a), Florida Statutes (2013)

If it is your intention to keep the settled agreement confidential, I implore you to insert language in the agreement that specifically addresses this issue.

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