March 2017
Parties need adequate information to evaluate the strengths and weaknesses of their own position, as well as the opposing side’s position, to prepare for mediation. In most cases a portion of this information must necessarily come from the opposing party. Some of this information can be obtained through discovery, but depending on the timing of your mediation, discovery may not be complete. Protracted discovery adds to the cost of litigation. Additionally, some information needed to settle a matter may not be available to parties in litigation, such as confidential financial information. For example, in the case of a financial institution, a specific set of documents may be needed for the financial institution to begin the process of evaluating any settlement offer.
Most mediations facilitated by Florida Supreme Court certified mediators are governed by the Mediation Confidentiality and Privilege Act (sec. 44.401 – 44.406 Fla. Statutes). Most communications in furtherance of a mediation are confidential under this Act.
In order to make your mediation most effective, consider holding a pre-mediation conference with opposing counsel and the mediator. The purpose of this conference is to determine what information is needed by each side prior to setting foot in the mediation, and the lead time necessary to evaluate that information. If this information is confidential or of a sensitive nature, counsel can reference the Mediation Confidentiality and Privilege Act, stipulating to a protocol for handling and return of items deemed confidential.
