Disclosure of Mediation Communication Does Not Disqualify Judge

Enterprise Leasing Co. vs. Jones, No SC00-219 (Fla.Sup.Ct. 7/5/01)

The bar against disclosure of mediation communications does not require that a judge be automatically disqualified, if exposed to confidential mediation information.

Evidently, nobody advised Mr. Jones that Section 44.102(3), F.S. (2001), makes both oral and written mediation communications confidential and inadmissible as evidence at trial (absent party agreement); so, when asked by the court to indicate if mediation had been attempted, he answered at great length. As a consequence, the trial court became informed of Jones’ demand for settlement and the highest offer made by Enterprise – communications made during an earlier mediation.

Enterprise moved to disqualify the judge, was denied, and the trial continued.

Because Enterprise pursued a parallel appeal while the trial ensued, it finds itself in the ironic position of having won before the jury, while, before the Court, that verdict may be jeopardized. The Court begins by brushing aside a mootness claim by Enterprise, stating this issue is too important and is likely to recur. The Fourth District Court of Appeal appears to have ruled, in a similar case, that the simple fact of disclosure of confidential mediation communications warrants disqualification. The Supreme Court rules, though, that the privilege against disclosure “does not give rise to a per se rule requiring reversal if violated.” This privilege “does not differ substantially” from other privileges established by statute. “We can see no compelling reason to treat a trial court’s knowledge of inadmissible information in the mediation context any differently from the other situations presented every day, where judges are asked to set aside their personal knowledge and rule based on the evidence presented by the parties at the trial or hearing.” There were no specific allegations of bias to support the disqualification motion and the trial judge’s decision to remain was reasonable.

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Mark Astarita is a nationally recognized securities attorney, who represents investors, financial professionals and firms in securities litigation, arbitration and regulatory matters, including SEC and FINRA investigations and enforcement proceedings.

He is a partner in the national securities law firm Sallah Astarita & Cox, LLC, and the founder of The Securities Law Home Page - SECLaw.com, which was one of the first legal topic sites on the Internet. It went online in 1995 and is updated daily with news, commentary and securities law related links.