2010 MEDIATOR ETHICS ADVISORY COMMITTEE OPINIONS
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A certified mediator may designate mediation clients [parties] or attorneys who participate in mediations with the mediator as "friends" on a social networking site, and permit clients of attorneys to add the mediator as their "friend". A mediator should keep in mind that doing so may limit the clients with whom the mediator may work in the future.
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A mediation party does not have the right to restrict another party from access to mediation communications as they belong equally to both parties. A mediator could have given both parties a copy of the unsigned written agreement, even over the objection of one of the parties.
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The use of the word "judge" in the title of the mediator's company, as depicted on stationery, business cards, the title of a website homepage, and other marketing materials is prohibited.
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1A. Even if the parties do not raise the issue, a mediator may raise the issue of the parental address that will be included in the parenting plan for school enrollment.
1B. A mediator is accountable to the referring court with ultimate authority over the case. Any interaction discharging this responsibility, however, shall be conducted in a manner consistent with these ethical rules.
1C. The actions of a judicial officer are governed by the Rules of Judicial Administration and therefore outside the jurisdiction of the MEAC.
2A. A mediator is prohibited from taking on the dual role of mediator and notary.
2B. Questions regarding the enforceability of mediated settlement agreements are legal questions and hence outside of the jurisdiction of the MEAC.
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| 1 & 2. It is up to the mediator to decide how to interpret the hesitation of a party before the party responds in the affirmative as to their understanding of the terms of a potential agreement. If, after further inquiry, the mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the party of the right to seek independent counsel, therefore making this a requirement.
3. [Query: If a mediator believes that a party does not understand the terms of the agreement or appreciate how it may adversely affect legal rights or obligations, but the party states he understands and wants to sign the agreement, what should the mediator do?] The mediator should honor the party's right to self-determination after assessing the party's ability to participate meaningfully and with understanding of the terms of the agreement. If, however, the mediator believes the party is unable to rationally and intelligently assess the terms of the agreement or the mediator is no longer impartial, then the mediator must adjourn, terminate or withdraw from the mediation.
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| 1. A mediator may discuss and "explore settlement alternatives" with the parties as long as the activities by which the mediator does so is consistent with the Rules for Certified and Court-Appointed Mediators [Rule 10.310 Self-Determination, Rule 10.330 Impartiality and Rule 10.370 Advice, Opinions or Information].
2. The answer to question 1 does depend on whether the mediator was in caucus with the parties.
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| At the completion of mediation, a mediator shall report "agreement" or "no agreement" without comment or recommendation as dictated by Rules 1.730(a) and (b) of the Florida Rules of Civil Procedure. However, a mediator may report that a mediation was adjourned.
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| 1. A mediator assigned through the Residential Mortgage Foreclosure Mediation Program [RMFMP] or in any other mediation venue may not use the mediation conference to solicit future business from the parties during the mediation conference.
2. 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.
3A. A mediator should recuse him/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.
3B. 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.
3C. The actions of a Program Manager of a RMFMP are outside the jurisdiction of the MEAC which is charged with providing ethical guidance to certified and court-appointed mediators.
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| 1. It is not appropriate for a court-appointed mediator to act as plaintiff's representative during the pre-trial process.
2. 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.
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| It is ethical for a mediator to participate in the Florida Supreme Court's Residential Mortgage Foreclosure Mediation Program [RMFP].
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| Questions regarding mediator fees, reports to the court, participation of parties without full authority to settle in general and in connection with the Residential Mortgage Foreclosure Mediation [RMFM] Programs are examined, explained and responses given in the six questions posed in this opinion.
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| A mediator is accountable to the referring court with ultimate authority over the case. Any interaction discharging this responsibility, however, shall be conducted in a manner consistent with these ethical standards. If a mediator believes a court program is asking the mediator to violate the mediator's ethical standards, the mediator shall decline to do so.
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| A former judge is prohibited from using the term "Judge Emerita" in the title of the mediator's company, as depicted on stationery, business cards, the title of a website homepage, and other marketing material. The Committee maintains confidence in and refers mediators to MEAC Opinion 2010-003 which addresses this marketing restriction in more detail.
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| A mediator does not have the authority to compel attendance at subsequent mediation conferences against the wishes of the parties and/or their counsel.
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