Mediation Settlement Agreements and Confidentiality

Everything that is said at mediation is confidential, right? Therefore, if I settle my case at mediation, the amount of the settlement is confidential since the amount of the settlement was obviously discussed as part of the mediation, right?

Not so fast, partner. Florida Statute 44.403(1) states that “(e)xcept as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.” However, the same statute goes on to say that “there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise…” Fla. Sta. 44.403(4)(a).

In January 2014, the Florida Supreme Court Mediator Ethics Advisory Committee issued an opinion finding that unless the parties have agreed otherwise, written communications included in a mediated agreement that has been signed by all parties and counsel are not confidential. MEAC Opinion 20013-007, January 21, 2014.

The takeaway? If you want the terms of your agreement to remain confidential, you better put it in the settlement agreement. Waiting until the release is drafted to address confidentiality may be too late, as your opposition is free to disclose whatever is in the settlement agreement.