Are Mediators Obliged To Keep And Maintain Mediation Files After Declaration Of Impasse Or Final Settlement?

The opinions of the Mediator Ethics Advisory Committee are rendered pursuant to the authority of rule 10.900, Florida Rules for Certified and Court-Appointed Mediators and are based on the specific facts outlined in the question. They are based on the Committee’s interpretation of the rules in effect on the date the opinions were rendered. The summary of each opinion has been prepared for quick reference. Any inconsistency between the summary and the opinion should be resolved in favor of the opinion.

October 5, 1995


The Question


This letter is to request your opinion on the following related questions: Are mediators certified by the Florida Supreme Court pursuant to the provisions of Ch. 44, Fla. Stat., and Rule 10.010, et seq., Florida Rules for Certified and Court Appointed Mediators, obliged to keep and maintain mediation files after declaration of impasse or final settlement? If so, for what period of time? What material should be maintained and what material (e.g. notes) should be discarded?



Your attention to this matter is sincerely appreciated. As background, I am enclosing a copy of an article entitled Closing In On The Closed File Dilemma relating to law office files which was published recently in the Law Practice Management Reporter of the Missouri Bar.



Sincerely,



Certified County, Family & Circuit Mediator


Northern Division



Summary of the Opinion



The Panel is of the opinion that the questions you raised are of a legal rather than an ethical nature and therefore are not within the jurisdiction of the Panel.



Authority Referenced



Rules 10.100(b) and 10.080(c), Florida Rules for Certified and Court-Appointed Mediators


1995-2000 Florida Rules for Certified and Court-Appointed Mediators

Post 2000 Florida Rules for Certified and Court-Appointed Mediators.


Opinion



The Panel is of the opinion that the questions you raised are of a legal rather than an ethical nature and therefore are not within the jurisdiction of the Panel. While declining to answer your question, the panel would observe that there are two rules of marginal relevance, to wit, rule 10.100(b), which requires a mediator to maintain adequate records to support charges for services, and rule 10.080(c), which provides that a mediator shall maintain confidentiality in the storage and disposal of records. Neither of these rules directly relates to your question since the former deals with financial records rather than records of the mediation itself, and the latter, while relating to the records of the mediation, provides no guidance in relation to retention. Nor does the panel believe that rules relating to the retention of files by attorneys relevant, even though adopted by the Supreme Court, since the function of the mediator and attorney are so dissimilar.

                        author

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