Evidence Center · Mediation
What happens in mediation — and what the statute actually protects.
Almost every contested family case is referred to mediation under Rule 12.740, and almost every participant wonders the same thing afterward: can that be used against me? Florida answers by statute — the Mediation Confidentiality and Privilege Act. The protection is real, and it has edges: a signed agreement is not confidential, and the Act lists its own exceptions. Both halves are quoted below, verbatim, because a protection you overestimate can hurt as much as one you never knew.
The referral — Rule 12.740
Contested family matters may be referred to mediation — in person, remote, or mixed — and the rule carries its own safety valve, in its own words:
“advise the court if there is an injunction for domestic violence or a conviction of a crime of domestic violence between the parties, or if the court finds there has been a history of violence between the parties that would compromise the mediation process.”Where there is an injunction, a conviction, or a history of violence that would compromise the process, the court may waive mediation entirely or enter protective orders. If that is your situation, Safety Mode and counsel come before any mediation planning.
The protection, in the Act's words
“an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation.”“all mediation communications shall be confidential.”“privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.”Two distinct layers: CONFIDENTIALITY (participants must not disclose mediation communications to outsiders — court-ordered mediations add court sanctions) and a testimonial PRIVILEGE (a party can refuse to testify about mediation communications, and prevent others from doing so, in later proceedings). The definition has its own edge worth reading twice: "The commission of a crime during a mediation is not a mediation communication."
The edges — what the Act itself does NOT protect
“there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication: 1.”THE SIGNED AGREEMENT IS NOT SECRET. The settlement you sign in mediation is an enforceable document the court will see — confidentiality covers the conversation, not the deal (unless the parties agree otherwise). Beyond that, § 44.405(4)(a) lists the exceptions, summarized here directly from its text — read the section itself for the exact terms:
- · Communications whose protection all parties waived;
- · Communications willfully used to plan, commit, or conceal a crime, or to threaten violence;
- · Communications that trigger a mandatory abuse report (chapters 39 and 415) — solely for making that report;
- · Communications offered on professional malpractice or misconduct occurring in the mediation — solely for those proceedings;
- · Communications offered to establish or refute grounds for voiding or reforming a mediated settlement.
The Act also states the two boundary rules practitioners lean on: evidence that was already discoverable does not become protected by being mentioned in mediation (§ 44.405(5)), and a party who discloses a privileged communication waives the privilege to the extent needed for the other side to respond (§ 44.405(6)). Whether any exception applies to your facts is contested territory — counsel's call.
The enforcement teeth, and the older cousin
“knowingly and willfully discloses a mediation communication in violation of s. 44.405 shall, upon application by any party to a court of competent jurisdiction, be subject to remedies, including: (a) Equitable relief.”“any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.”Breaching mediation confidentiality carries civil remedies — equitable relief, damages, and fees, on the Act's own timetable. And outside mediation entirely, the Evidence Code's § 90.408 makes offers to compromise a disputed claim — and negotiation statements about them — inadmissible to prove liability or value. Settlement talk has protection in both rooms; the SCOPE differs, and the differences are exactly where counsel earns the fee. When mediation ends is itself defined — § 44.404 marks the boundaries of the protected window.
The practical habit
Speak freely enough for mediation to work — that is what the Act exists for — and treat the SIGNED PAGE as the public act it is: read every word before signing, because the agreement, unlike the conversation, will follow you out of the room. The drafting studio's mediated-agreement instruments carry that honesty on their face.
Statutory and rule excerpts are verbatim from the hash-verified corpus; text renders in English as enacted. Whether any communication is protected or excepted on your facts is a legal question. Legal information, not legal advice.