MEAC Opinions - Conflicts of Interest
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Opinion | Subject Matter | Current Cites |
A conflict check must be performed by a mediator for all “mediation participants." If a conflict or the appearance of a conflict exists, the conflict must be disclosed as soon as practicable to allow self-determination of the parties. | Section 44.403(2) and (3), Florida Statutes. Rule 10.340, Florida Rules for Certified and Court-Appointed Mediators. MEAC Opinions 2018-003 and 2017-015. | |
In the present matter, the mediator was made aware he was the mediator for a mediation involving one of the two parties. This raises at least the possibility of a potential conflict or the appearance of a conflict of interest since the facts of the prior case may relate to the current case. The mediator should disclose the potential conflict to all parties as soon as practical after the mediator is aware of it. Thereafter, the mediator may continue to serve only if all parties agree. | Rule 10.340, Florida Rules for Certified and Court-Appointed Mediators MEAC Opinions 2020-001 and 2019-007 | |
We affirm our previous MEAC Opinion 2017-002, that mediators shall not serve in dual roles as both the mediators and interpreter simultaneously. Mediators shall honor the parties’ rights of self-determination and not make substantive decisions for them, including determining agreement language. However, the mediator may advise the parties that any agreement filed with the courts must be in English. | Florida Rules for Certification and Regulation of Spoken Language and Court Interpreters Rule 10.420 (c), Rules for Certified and Court-Appointed Mediators MEAC Opinions, 2017-021, 2017-002 and 2011-017 | |
Mediators must evaluate each case to determine if a conflict of interest is waivable and if they can be impartial. Mediators have an obligation to disclose any potential conflicts of interest which are waivable at the earliest possible opportunity and may mediate the case if both parties agree after disclosure. | Rules 10.330 and 10.340, Florida Rules for Certified and Court-Appointed Mediators MEAC Opinions 2019-007 and 2017-015 | |
Mediators may not mediate matters that present a clear or undisclosed conflict of interest. Determining whether a conflict can be cured through disclosure depends on a variety of factors. Mediators have the obligation to disclose potential conflicts of interest which are waivable and may mediate the case if both parties agree after disclosure. | Rules 10.340(a) - (c), Rules for Certified and Court-Appointed Mediators MEAC Opinions 2003-006, 2004-007, 2005-006, and 2011-014 | |
A mediator is obligated to disclose any relationship that compromises or appears to compromise the mediator’s impartiality. | Rule 10.340, Florida Rules for Certified and Court-Appointed Mediators MEAC Opinion 2004-008 | |
Settlement agreement language inserted into an agreement by the mediator regarding a mediator’s compliance with the ethical rules does not promote or respond to the needs and interests of the parties, may create an obstacle to the parties signing the agreement which otherwise memorializes their agreed upon terms, and may result in the parties feeling coerced to agree to additional substantive language regarding ethical issues extraneous to their dispute in order to obtain a written agreement. | Rules 10.230(b), 10.300, 10.310(a) and (b), and 10.420(c), Florida Rules for Certified and Court-Appointed Mediators MQAP 1997-005 | |
Consistent with MEAC Opinion 2017-002, a mediator shall not perform the dual roles of mediator and oral interpreter for a deaf party.
| Rules 10.330(a), 10.340(d), and 10.410, Florida Rules for Certified ad Court-Appointed Mediators MEAC Opinion 2017-002 | |
The MEAC answers several questions about conflicts of interest involving a circuit court ADR unit and also regarding the unit’s mediators maintaining mediation confidentiality when the unit is supervised by an administrative magistrate. | Section 44.405, Florida Statutes Rules 10.330(a), 10.340(a) – (c), and 10.910(a), Florida Rules for Certified and Court-Appointed Mediators MEAC Opinion 2005-005 | |
As required of any person, a mediator has a statutory obligation to immediately report a reasonable suspicion of abuse or neglect involving a vulnerable adult to the central abuse hotline under section 415.1034(1)(a), Florida Statutes. In some circumstances, after making a mandatory report, the mediator should decline a case or withdraw from a case being mediated. | Rule 10.330(a) and (b), Florida Rules for Certified and Court-Appointed Mediators Sections 39.201(1)(f), 415.1034(1)(a), and 415.107, Florida Statutes MEAC Opinion 2012-007 | |
Disclosure of a conflict of interest shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest. A mediator who is a member of a law firm representing a party who is adverse to a party at mediation has a clear conflict of interest which may not be waived by the parties. | Rule 10.340, Florida Rules for Certified and Court-Appointed Mediators, and Committee Note MEAC Opinions 2002-005 and 2008-007. | |
Prior consultation with a party to a mediation by a member of the mediator’s law firm requires disclosure by the mediator, but is a waivable if the parties agree. | Rules 10.330(a), and 10.340(a) – (c), Florida Rules for Certified and Court-Appointed Mediators MEAC Opinion 2011-014 | |
If a mediator is a party in case A, it would be a clear conflict of interest which would compromise the mediator’s impartiality for the mediator to mediate case B which involves the mediator’s attorney and the attorney and opposing party in case A. | Rules 10.330(a) and 10.340(a), Florida Rules for Certified and Court-Appointed Mediators | |
Consistent with MEAC Opinions 2011-017 and 2014-004, a mediator shall not perform the dual role of a mediator and translator or interpreter.
| Rules 10.220; 10.310; 10.330(a) & (b); 10.340(d) and the Committee Note to rule 10.340; 10.370(a); 10.410; and 10.420(b), Florida Rules for Certified and Court-Appointed Mediators MEAC Opinions 2011-017 and 2014-004 | |
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. | Rule 10.310, Committee Note, MEAC Opinion 2009-002
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A trainee observing a mediation to fulfill mentoring requirements for initial mediator certification may not serve in the dual capacities of trainee and language translator or interpreter.
| Section 44.403(2), Florida Statutes In re: Procedures Governing Certification of Mediators, Fla. Admin. Order No. AOSC11-1 (January 10, 2011) MEAC Opinion 2011-017 | |
The Notice of Vendor Expectations (Notice) the mediator is questioning creates a non-waivable conflict of interest because of the language it contains. | Rules 10.310(a), 10.330(a), 10.340(a), 10.360(b), 10.520 and 10.620 | |
It is a clear conflict of interest for a mediator to mediate a case when a party’s attorney is or was previously related to the mediator. A clear conflict of interest cannot be waived regardless of disclosure. | Rules 10.330(a), 10.340(a) and (c) MEAC Opinion 2004-008 | |
Under certain circumstances, an attorney who conducted a joint representation of a couple in an adoption or in working with them on an estate plan, may, upon both parties’ request, subsequently serve as their mediator in an unrelated legal proceeding. | Rules 10.200, 10.300, 10.330, 10.340, 10.370
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Question One: In a case in which a mediator’s former law partner is representing a party as an advocate subsequent to the mediator leaving the law firm, there is no pre-determined amount of time that must elapse before the mediator may mediate such cases. In conflict of interest cases, each case must be evaluated individually through a series of filters to determine if the conflict is waivable or a “clear” conflict and therefore non waivable. Question Two: It is a clear conflict of interest for a mediator to mediate a case in which his/her former law partners represented any of the parties while the partnership was in effect. This would be a non waivable conflict. | Rules 10.330, 10.340 Committee Note to Rule 10.340 MEAC Opinions 2002-005, 2008-007, 2009-009
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In this example, the conflict is resolvable with appropriate mediator disclosures and party agreement as outlined in the Committee Note to Rule 10.340, Conflicts of Interest, Florida Rules for Certified and Court-Appointed Mediators. | Rule 10.340 (a)-(c) with Committee Note, Florida Rules for Certified and Court-Appointed Mediators | |
A mediator is prohibited from taking on the dual role of mediator and interpreter or translator. The responsibilities of a Residential Mortgage Foreclosure Mediation Program (RMFMP) and the actions of a RMFMP manager are outside the jurisdiction of the MEAC. | Rule 10.340(d) and Committee Note MEAC Opinions 2011-004, 2010-004, 2007-005, 2004-004 | |
It is beyond the jurisdiction of the MEAC to render an opinion as to attorney obligations. | Rule 10.340 and Committee Note | |
A mediator who is a member of a law firm or professional organization is obliged to disclose any past or present client relationship that firm or organization may have with any party involved in the mediation. There is no dispensation if the conflict is caused by a member of a law firm for which the mediator works or with whom the mediator is affiliated.
Whether the conflict can be waived by the parties in order to allow the mediator to conduct the mediation will depend on the factors of the particular case. | Rules 10.340 (a) – (d) and 10.340 Committee Note, MEAC Opinions (listed in order as referenced in question): 2010-008, 2003-006, 2002-005, 2008-007, 2009-009 and 2004-007
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The questions presented relate to the Code of Ethics for Public Officers and Employees, Chapter 112, Florida Statutes and not the Florida Rules for Certified and Court-Appointed Mediators. | Rules 10.330, 10.340, 10.520, 10.620 MEAC Opinions 2005-002, 1999-009, 1999-006 | |
The Committee remains confident in the continuing correctness of MEAC 2010-004 which states in part, “a mediator is prohibited from taking on the dual role of mediator and notary.”
| MEAC Opinion 2010-004, 2007-005 and 2004-004 Rule 10.340(d), Note to Rule 10.340 | |
Answer to Question One: No, it is not appropriate for a court-appointed mediator to act as plaintiff’s representative during the pre-trial process. Answer to Question Two: A court-ordered mediation begins when the court refers the case to mediation. In this scenario, actions undertaken prior to a court referral to mediation would be outside the mediation process. | Rules 10.330, 10.340(a), and 10.420(a) | |
Answer to Question One: A mediator assigned through the Residential Mortgage Foreclosure Mediation Programs (RMFMP) or in any other mediation venue may not use the mediation conference to solicit future business from the parties during the mediation conference. Answer to Question Two: It is not appropriate for a mediator to use a RMFMP mediation conference (or any other mediation conference) to solicit and remove the mediation to his office for private mortgage foreclosure mediation. Answer to Question Three, Part A: A mediator should recuse himself/herself from a mediation conference when he/she has represented defendants against a specific financial institution that is a party at a current mediation conference. This is a non waivable conflict. Answer to Question Three, Part B: A mediator should not declare an impasse simply because one or both parties feel there is a conflict of interest with the mediator and one of the parties has requested a different, neutral mediator. Answer to Question Three, Part C: The actions of a Program Manager of a RMFMP are outside of the jurisdiction of the MEAC which is charged with providing ethical guidance to certified and court-appointed mediators. | Rules 10.310, 10.330(c), 10.340(a) and (c), 10.510, 10.620 Committee Note to Rule 10.340 MEAC Opinions 2001-006, 2003-006, 2004-005
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It is a conflict of interest for a mediator to mediate a case when one of the mediator’s law partners is currently performing transactional legal services for the law firm representing the party to the mediation. | Rule 10.340 MEAC Opinions 2002-005 and 2008-007 | |
A mediator’s impartiality is not necessarily compromised nor is a conflict created simply because a mediator agrees to serve for a reduced fee as a “preferred” provider; however, any mediator who has an ongoing relationship for the provision of mediation services needs to determine whether that relationship affects impartiality or creates a conflict of interest. Agreeing to the terms described and mediating cases scheduled as a result of that agreement does not appear to compromise a mediator’s integrity or impartiality nor violate the requirement that mediators respect the professional relationships of other mediators. | Fla. Stat. § 440.25(3)(b) (2008) Rules 10.330, 10.340, 10.380(a) and (e), 10.620, and 10.660 MEAC Opinions 96-001 and 98-006 | |
A mediator’s permissible marketing efforts depend on fact-specific circumstances such as cost and whether intended to cultivate favor with particular potential future clients. | Rules 10.330; 10.340; 10.610, 10.620 MEAC Opinions 2001-006 and 2002-004 | |
The Rules for Certified and Court-Appointed Mediators do not contain a specific prohibition against mediators serving as an arbiter and interpreter of a settlement agreement the mediator previously mediated; however, engaging in such activity raises serious ethical concerns. | Rules 10.310, 10.310 Committee Note, 10.330(c), 10.370, 10.420(c), 10.620, 10.640 MEAC Opinions 1996-002 and 1998-006 | |
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.
| Rules 10.340 (a)-(c), 10.620, and 10.650 MEAC Opinions 94-002, 94-003, 96-002, and 2005-004 Rules 4-1.12 and 4-2.4, Rules Regulating the Florida Bar | |
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. | Rule 10.340 MEAC Opinion 2002-005 | |
It is not ethically proper to prepare retirement orders after having served as mediator for the case regardless of whether the parties have waived any conflict of interest. | Rules 10.340(d) and 10.620 MEAC Opinions 2004-004, and 2005-004 | |
A mediator (who is also an attorney) engaged in an ongoing legal relationship with a third party administrator must not serve as a mediator in cases involving the third party administrator because it is a clear, nonwaivable conflict of interest. A mediator (who is also an attorney) may serve in cases involving a reinsurer, even if some of the mediator’s legal clients utilize the same re-insurer, if the relationship is disclosed and the parties waive any potential conflict because such a relationship is not a clear conflict of interest. | Rules 10.330, 10.340, and 10.620 MEAC 2003-006 and 2004-007
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It is inappropriate for a mediator to represent either one party or both parties in any dissolution proceeding or in any matter arising out of the subject mediation. There is no ethical obligation under the Florida Rules for Certified and Court-Appointed Mediators for a mediator to report allegations of ethical violations by another mediator. | Rule 10.340(d) MEAC 94-003 and 2004-004
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While your position as a judicial assistant does not automatically prohibit you from mediating, you are still obligated not to mediate a matter that “presents a clear or undisclosed conflict of interest,” Rule 10.340(a). You are required to make this determination on a case by case basis. | Rule 10.340(a) MEAC 99-006 | |
Mediating a case your daughter is personally handling would be a nonwaivable, clear conflict, while her firm’s case with which she had no involvement, is a conflict of interest which may be waivable after disclosure. | Rules 10.330(a) and 10.340(a)-(c) | |
MEAC Opinions are based on the facts presented in the question. Prior representation of a party to a mediation, which involved different parties, a different case or different subject matter would be subject to disclosure and may be waivable based on a case by case determination. | Rule 10.340 MEAC 2003-006 | |
A. A mediator may record or memorialize the parties’ agreement but, it is not the mediator’s role to make substantive decisions for the parties. In recording the parties’ agreement, a mediator must observe the ethical rules regarding impartiality, professional advice, and other professions’ standards, such as the unauthorized practice of law. B. While a mediator may assist the parties in completing authorized forms, a mediator should stop short of “drafting” the Petition for Dissolution, Answer, or other pleadings. C. Drafting pleadings and providing advice on how to file them would be an inappropriate additional service not directly related to the mediation process. D. It is inappropriate for a mediator to represent either party in a dissolution proceeding or in any matter arising out of the subject mediation. E. The Committee declines to answer the question of whether appearing at a final hearing and eliciting “basic information” is the practice of law. However, such activity is inappropriate for a mediator. | Rules 10.330(a); 10.340(d); 10.420(c); 10.620; 10.650; 12.740(f)(1) Section 44.404(1), Florida Statutes MEAC 94-003, 2000-009, 2001-003
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Having once acted as an advocate for one party, it would be unethical for a mediator to subsequently conduct a mediation, irrespective of waivers from all parties, since there would be a clear conflict of interest pursuant to rule 10.340(a). | Rule 10.340(a) and Committee Notes MEAC 94-002, 94-003 and 99-001 | |
Serving as the mediator for a case involving a party to mediation against whom your law firm has cases pending creates a clear conflict necessitating the withdrawal of the mediator, regardless of the express agreement of the parties | Rule 10.340 MEAC 2001-009 | |
It would be ethically inappropriate to become counsel of record for either party in their pending divorce when the first contact was a joint meeting to discuss mediation. | Rules 10.310, 10.330(a) - (c), 10.360(a), 10.370(b) - (c) MEAC 94-003, 97-009 Note: Changes to the rules in 2006 may impact this opinion. | |
A. Referring cases to and receiving referrals from a firm for a fee may constitute a conflict necessitating the mediator’s withdrawal. B. A mediator must disclose former associations, such as previous employment, but is not be required to withdraw unless such past relationship constitutes a clear conflict. | Rules 10.330(a), 10.340(a)-(c), Committee Note to rule 10.340 | |
A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases. | Rules 10.340(a)-(c) MEAC 99-007 | |
A mediator is not precluded from mediating as case in which one of the parties who previously attended a parenting course taught by the mediator. | Rules 10.330, 10.340(a), 10.340(c) MEAC 97-003 and 99-008 | |
| The mediation rules do not prohibit a full-time mediator employed by the county from mediating privately on his/her own time. | Rules 10.330, 10.340, 10.500, 10.620 Chapter 112, Part III, Florida Statutes Note: Changes to the rules in 2000 may impact this opinion. |
| Providing training to persons who are later parties to a mediation does not preclude a mediator from mediating so long as disclosure is made and parties request the mediator to serve. | Rules 10.340(a) - (c)
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| A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases. | Rules: 10.340(a) - (c)
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A mediator’s employment as a Deputy Clerk do not inherently cause ethical concerns. | Rules 10.330(a), 10.340, 10.620
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| It is permissible for an attorney mediator to subsequently serve as an attorney for an individual in an unrelated case against a party who participated in a mediation with this mediator. | Rules 10.330(c), 10.620 MEAC 97-002
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| A mediator may disclose that s/he has mediated with an attorney, claims representatives, or other parties previously, but is not required to do so unless there is a “close personal relationship” or other circumstance specifically referenced in the rules. | Rules 10.330(b), 10.340(a)-(b)
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| Mediating for parties who have been marriage counseling clients is permissible, if both request. | Rules 10.330, 10.340(b), 10.610, 10.620, 10.650 Note: Changes to the rules in 2000 may impact this opinion. |
| An attorney-mediator may represent a party in a subsequent dissolution of marriage. | Rules 10.330(c), 10.340(d), 10.620 Note: Changes to the rules in 2000 may impact this opinion. |
Mediator should decline serving as a Special Master following mediating a case. | Rules 10.360, 10.620; Section 44.405(2), Florida Statutes Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion. | |
| Serving as counsel following service as mediator for the same case is not permitted. | Rules 10.340(d), 10.420(c), and 10.620; 1.730(b) and 12.740(f)(1) |
| Serving as co-counsel following service as mediator for the same case is not permitted. | Rules 10.200, 10.330, 10.340, 10.360, 10.620 Note: Changes to the rules in 2006 may impact this opinion. |
Contact
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