Amendments to the Florida Rules for Certified and Court-Appointed Mediators were adopted by the Supreme Court of Florida on September 12, 2024 (hereinafter “Amendments”). (See, Order No. SC2023-1537). The Amendments went into effect on January 1, 2025. Significantly, the Court has provided guidance on what constitutes a “clear conflict of interest”, as well as other clarifications. Mediators and counsel alike should take time to be familiar with the Amendments.

First, Rule 10.340(d) has been added to limit and define what constitutes a clear conflict of interest. These circumstances are as follows: (1) the mediator (or the mediator’s spouse or domestic partner) is related by blood, adoption, or marriage to a person within the third degree of relationship to one of the mediation participants or a participant’s spouse or domestic partner; (2) the mediator previously provided services (other than mediation services) for, or represented one or more of the mediation participants in, the current case or dispute at issue in the mediation; or (3) the mediator is currently providing services (other than mediation services) or representing one or more of the mediation participants.

The instances of clear conflict do not obviate the need for a mediator to evaluate whether he or she believes a conflict exists in a particular matter or “appears” to compromise the mediator’s impartiality. (See, Rule 10.340(a)). Additionally, if a mediator believes a disclosure should be made, that is still required. (See, Rule 10.340(b)). Adopting the clear conflict definition, however, may supersede prior opinions of the Florida Supreme Court’s Mediator Ethics Advisory Committee (“MEAC”).

For example, MEAC Opinion 2008-007 concluded that a mediator who works for a law firm is conflicted out of handling a matter where the firm is adverse to a mediation party, even if the mediator has no involvement in the matter. Further, MEAC Opinion 2012-004 concluded that a “non-waivable conflict” existed if a former law partner represented a mediation party while the mediator was at the law firm. The Amendments make it clear that being a current or former member of a law firm will no longer automatically preclude the mediator from handling the case. Mediators should review prior MEAC opinions against the Amendments going forward.

The Amendments also include changes to Rule 10.360. Confidentiality. In pertinent part, the Amendments include caucus, record keeping, staff confidentiality, and reporting. Significantly, Rule 10.360(b) now provides that a mediator may have a policy that information disclosed during caucus may be disclosed to the other participants unless a party expressly tells the mediator to keep the information confidential. This is a discretionary policy for the mediator.  Mediators should clearly explain whether they have such a policy during the joint session and make sure the parties and participants understand how confidentiality and caucus sessions will be handled. For the time being, I intend to maintain my policy of not disclosing confidential information between caucus rooms unless the party has expressly authorized me to do so.

Next, Rule 10.340(c) provides that a mediator may shred notes or other records “immediately” after the mediation. As to reporting of the outcome, Rule 10.340(e) has been added to reflect that the mediator is obligated to report the outcome to the court, however, the information is limited to reporting: “agreement”, “no agreement”, “partial agreement”, or adjournment for further mediation” without comment or recommendation.

Further, a mediator is prohibited from commenting on whether a party or counsel mediated in good faith.  No other descriptors or modifiers may be used in the mediator report unless the parties have consented to them in writing. Rule 10.340(f) does, however, permit a mediator to identify who was or was not present at the mediation and whether in person or by communication technology. Thus, for those of us that have historically used the phrase “impasse” in our reports, we are no longer permitted to do so.

The Amendments also acknowledge that mediators can have the assistance of clerical staff. The mediator must advise staff that the mediation records are confidential pursuant to the Rules and Florida law. (See, Rule 10.360(d)).

                Finally, the Amendments also acknowledge a mediator’s ability to utilize social networking. Rule 10.340(g) was added and provides: “Mediators may create connections with mediation participants or their counsel on a social networking site (e.g. “friends” on Facebook, “followers” on X, formerly known as Twitter). However, mediators who do so must recognize that such designations may create the appearance of a conflict and may only mediate disputes involving such mediation participants or their counsel” in accordance with the Rules. One suggestion would be to avoid advocating, promoting or siding with legal issues or decisions posted by other connections, as this could create an appearance of partiality.

The above is not intended to be an exhaustive list of all the changes. The amended Rules can are fully set forth in the above-cited Order.

William J. (“Bill”) Cea. Esq.  is a Florida Supreme Court Circuit Certified Mediator and Florida Bar Board-Certified Construction Attorney.  Bill was admitted to practice law in Florida in 1992 and Certified as Mediator in 2011. He may be contacted via email:  [email protected] or phone (954) 494-3239, or via Inkedmediation.com. For additional ADR tips and resources, go to www.palmbeachbar.or/alternative-dispute-resolution-commee .