The concept of Med/Arb (mediation/arbitration) suggests certain issues that have come up before The Florida Supreme Court Mediator Ethics Advisory Committee.
Following a mediation that has impassed, what happens if the parties request the mediator to put on a different hat and act as arbitrator, binding or non-binding?
What happens when confidential information is shared by the parties during the mediation with the mediator, which is most often the case?
The Florida Rules for Certified and Court-Appointed Mediators do not contain a prohibition against a mediator serving as an arbitrator in a case the mediator previously mediated. The mediator must ensure the parties have a complete understanding of how the mediator’s role will change, and they must waive the conflict of interest and confidentiality of the mediation.
MEAC believes that the parties may exercise self-determination in deciding whether to have a prior mediator act as an arbitrator in the same case whether or not the mediator has received confidential information during the mediation. The mediator must ensure the parties have a complete understanding of how the mediator’s role will change and they must waive the conflict of interest and confidentiality of the mediation.
If the parties voluntarily agree to have their previous mediator act as an arbitrator, “the mediator should clearly inform the parties, preferably in writing, that he or she will no longer be serving as mediator and would not be able to mediate the present or related matters for them in the future.” MEAC 2009-002. The mediator must ensure that the parties are exercising self-determination and that they are voluntarily agreeing to select this mediator as the arbitrator. The mediator must ensure the parties understand the implications of the change in roles, and advise the parties that there may be other methods of alternative dispute resolution available to them. The mediator must explain the possible conflicts of interest and the loss of confidentiality resulting from the mediator becoming the arbitrator. The parties must then agree to waive any conflict and agree to the loss of confidentiality, preferably in writing. Additionally, once this change in role is effectuated, “the former mediator must no longer refer to himself or herself as mediator for the case.”
Rule 10.310, Committee Note, Florida Rules for Certified and Court-Appointed Mediators
MEAC Opinion 2009-002