William H. Stolberg, PA

The title of this article is a misnomer. The mediation privilege is more than a mere privilege. It is actually a statutory prohibition on the admissibility of certain evidence in judicial proceedings. The difference is more than academic, and especially so in family law cases where the distinction can set a trap for the unwary.

Family law cases are subject to two mediation statutes. F.S. 61.183 (1992) applies to child custody, visitation, and support. F.S. 44.102 (1990) applies to all civil actions and encompasses alimony, equitable distribution, and other financial claims. Both statutes contain similar provisions enabling the litigants to invoke, as privileged, any communications made during any court ordered proceedings.

In the current version of F.S. 61.183 (1992), the statute reads: "Each party involved in the mediation proceeding has a privilege during and after the proceeding to refuse to disclose and to prevent another from disclosing communications made during the proceeding, whether or not the contested issues are successfully resolved." (Emphasis added.) F.S. 44.102 (1990) utilizes almost exactly the same language:

Each party involved in a court-ordered mediation has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing, communications made during such proceeding "[A]ll oral or written communications in a mediations proceeding other than an executed settlement agreement . . .shall be confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise." (Emphasis added.)

Both statutes provide that the privilege may be waived by consent of all parties.

There is, of course, in addition to those two specific statutes addressing privileged communication within the mediation process, the age-old rule of evidence which holds settlement discussions to be inadmissible. F.S. 90408 (1976) provides: "Evidence of an offer to compromise a claim which was disputed as to validity or amount as well as any relevant conduct or statement made in negotiation concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value." A careful reading reveals that the distinction between the mediation statutes and F.S. 90408 is that the evidence code does not prohibit the admissibility of parole evidence to prove that a settlement has in fact been made and what the terms of settlement actually are. The mediation privilege statutes do, in fact, effectively prohibit parole evidence, unless otherwise agreed by the parties.

Privileges such as attorney-client (F.S. 90502 (1992)), accountant-client (F.S. 90.055 (1992)), or the Fifth Amendment privilege against compulsory self-incrimination carry with them certain penalizing consequences. The rule in Florida is that a party who bases a claim on matters which would be privileged, the proof of which will necessitate the introduction of privileged matter into evidence, and who then attempts to raise the privilege so as to thwart discovery, may be deemed to have waived that privilege. Under this "sword and shield" doctrine, a party may not proceed with a claim for affirmative relief based on evidence which he or she maintains is protected from disclosure under a claim of privilege. If the party insists on maintaining the privilege, the claim will very often be dismissed, or the pertinent portions of the pleadings will be stricken. In Minor v. Minor, 240 So. 2d 301 (Fla. 1970), a divorce action, the wife raised the Fifth Amendment privilege to avoid answering deposition questions regarding adultery. The Florida Supreme Court held that a plaintiff in a divorce action should not be permitted to further prosecute her action upon refusal to provide discovery on the basis of Fifth Amendment privilege, and her action was properly dismissed by the trial court.

No such penalties (or defenses) attach to the mediation exclusionary rule. The rule is self-executing; that is, mediation proceedings are inadmissible without the necessity of either party invoking a privilege per se. It may therefore be relied on without risking penalties or consequences that would otherwise be imposed on a litigant invoking a privilege under the evidence code. The result may be a grossly inequitable reward. For example, family law litigant positions to take advantage of an ambiguous clause in a mediation agreement can urge enforcement of the provision while invoking the mediation rule to close off evidence vital to a proper and equitable interpretation of that same clause. There are no sanctions for wielding sword and shield together when it comes to the family law mediation "privilege".

The situation is exacerbated by circumstances peculiar to domestic cases. Quite typically, family law settlements encompass a wide range of forms of relief and resolve numerous interrelated issues. The financial portions of any settlement can be viewed as inherently interrelated with an increase in one portion of the settlement (Property distribution, for example) offsetting or critically affecting another portion (perhaps alimony). The appellate courts recognize that family law provisions are so interrelated that it may be impossible to change on without affecting the others since all are part of an overall scheme of relief awarded to both litigants.

Family law settlement negotiations pose an additional and unique difficulty. The parties are not professional litigants, and do not normally make calculated businesslike decisions as might an insurance carrier and a plaintiff's lawyer. Instead, the parties are usually caught up in all the distracting emotions attendant to a divorce. It is not uncommon that the parties make their settlement, go home and think about it, and are later convinced that they could have or should have done better. Finality is important since there is a general tendency by both parties to try to reargue, renegotiate, or relitigate matters already concluded.

In order to definitively conclude a family law case, it is important to have a mediation agreement written and signed when the parties have finally resolved the issues, and before they have the opportunity to undo that which has been done. Very often the singed mediation agreement is to be followed up with a formal settlement document, and this fact should be set forth in the written mediation agreement. However, the failure of the parties to agree on the precise language or the more detailed provisions of the forma document to be drafted is where the trouble begins and usually results in the submission by one party of the roughly drafted mediation agreement to the court for ratification over the vehement objections of the other party.

Either party may move the court to have the mediation agreement, imperfect as it may be, entered as the final judgment if the court., notwithstanding an agreement to enter later into a full-blow written property settlement agreement. In Roskind v. Roskind, 552 So. 2d. 1155 (Fla. 3d DCA 1989), the Third district Court of Appeal established as the final judgment of the court an agreement made of record before a court reporter, despite a provision in the record that the parties would draft and execute a formal written agreement. Roskind tells the bench and bar that agreements made between the parties, however imperfect and imprecise, are going to be upheld by the courts, and the parties can presume that the courts will not be receptive to the parties' Monday morning quarterbacking.

Attempted enforcement of a skeleton agreement when it has been adopted by the court as the final judgment in the case may become a litigation quagmire because of disagreement over the meaning of a particular provision. It is in the enforcement and interpretation of the imperfect mediation agreement, often written up and signed after a tedious and stressful mediation session, that the mediation privilege becomes most crucial. Because of the mediation privilege, the parties are effectively prohibited from introducing particularly vital evidence as to the intended meaning and effect to be given an agreement.

Marital settlement agreements are contracts, subject to court approval in some respects (child custody and support), but contracts nonetheless, and they will be interpreted as are other contracts. Mediation agreements are very often comprised of legal shorthand and abbreviations, and contain undefined terms and general statements which are susceptible to more than one interpretation. For example, although financial obligations are likely to be well-defined, i.e., the payment of a specific amount of support monies or the transfer of a property interest, conditional provisions may be poorly stated and ill-defined, such as a recitation that he payment of alimony is subject to a co habilitation clause, or a term providing that the transfer of the marital residence is conditioned on the other party obtaining refinancing.

Interpretation of contracts is generally a matter of law to be determined by the court and, generally contracts will not be held void for uncertainty unless there is no other way out. As contract provisions, the terms of the marital settlement agreement will be given their ordinary meanings unless the agreement contains an ambiguity, or there is evidence that he parties intended to give non-ordinary meanings to certain terms. In short, the imperfect agreement will be upheld.

Generally, where contracts contain missing terms, such terms may be supplied by the court by determining the "usual, reasonable and customary practices in the locality." The Florida Supreme Court instructs the courts:

In the construction of the written contracts, it is the duty of the Court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and the apparent object of the parties, to determine the meaning and intent of the language employed.

The Fourth District Court of Appeal dictates that the courts must look to the plain language of the agreement, the surrounding circumstances, and the parties' apparent purpose to discern the meaning of the provisions of the agreement.

The surrounding circumstances in marital settlement agreements encompass negotiations involving varied and numerous considerations of support and property, the impact of various provision on the future lives of the parties and their children, and many other factors. These facts and circumstances are precisely what are discussed at length during mediation, and constitute the best evidence for proper interpretation of an ambiguous or incomplete agreement. Under the mediation exclusionary rule/privilege, these facts and circumstances are also what a litigant is specifically barred from presenting to the court in the even of subsequent controversy. It is usually necessary to present these discussions in an enforcement or interpretation proceeding, but this is impossibility when the mediation privilege is raised.

One solution for the careful practitioner is to include in the roughly drafted mediation agreement a specific mutual waiver of the privilege in the even of subsequent controversy or conflict regarding interpretation of any of the terms or provisions contained therein. This leaves the door open to the proffer of parole evidence to supplement or clarify the agreement.

Concessions and statements by parties and counsel are made during mediation for the purpose of achieving settlement that would never be disclosed in litigation. The objective of the mediation privilege is to encourage free and open settlement negotiations by eliminating the later evidentiary use of party admissions or other prejudicial disclosures arising during the mediation proceedings in the even that a settlement is not reached and the court must resolve the issues in the case.

However, once an agreement is reached, the necessity for the privilege disappears. The court cannot make or rewrite the contract. The material terms and conditions of the settlement are subject only to interpretation by the court, and may not be altered in their essentials. (Custody and child support issues are the exceptions, being always subject to court scrutiny and change). The danger of unfair prejudice disappears as to all other settled issues, and the parties need not worry that communications during mediation will prejudice one side or the other. To the contrary, the parties now must concern themselves with the likelihood that they will be stopped from presenting vital evidence needed to interpret or enforce the existing agreement. Such communications should be available to the court, to ensure a fair and equitable result, as contemplated by the parties when they entered the settlement.

The courts have, to date, strictly enforced the privilege provisions surrounding mediation. They have, in effect, erected an impenetrable wall around the mediation process. The legislature needs to revise the mediation statutes to provide for an exemption to the privilege with respect to topics that have been resolved by virtue of signed settlement agreements.

Mediation, the newly discovered panacea for whatever current difficulties we may have with our ancient tried and tested system of jurisprudence, brings with it a new and potentially counterproductive phenomenon: the mediation privilege. At this juncture the statutes and court decisions have surrounded the mediation process with an impermeable iron curtain, the existence of which may have unintended unpleasant consequences for litigants and courts alike. It falls on the careful family law practitioner to insulate the client form those consequences.

William H. Stolberg is a partner in the Fort Lauderdale law firm of Stolberg and Pence. He practices solely in the area of family law. He is Florida board certified in marital and family law, and is a member of the American Academy of Matrimonial Lawyers. Mr. Stolberg received his B.S. from Cornell University in 1968 and his J.D. from the University of Florida College of Law in 1973.

Kyle D. Pence is a partner in the law firm of Stolberg and Pence in Fort Lauderdale. He practices solely in the area of family law. Mr. Pence received his B.A. from Northwestern University in 1975 and his J.D. from Nova University in 1986. Mr. Pence is a member of the Family Law Section of the Broward County Bar Association.

This column is submitted on behalf of the Family Law Section, Renee Goldberg, chair, and William D. Palmer and Edna Y. Elliott, editors.