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<xTITLE>If a Crime is Admitted, What Then?</xTITLE>

If a Crime is Admitted, What Then?

by Gabriela Szlak, Rich Smukler
July 2020

“If a person during a caucus session tells the mediator that he committed a crime which had nothing to do with the case in mediation and someone else is going to be wrongfully punished for that crime does the mediator “A”: say nothing to the authorities or “B”: let the innocent person go to jail.

Summary

“Unless a crime disclosed to the mediator in caucus falls under one of the exceptions to confidentiality for mediation communications in section 44.405, Florida Statutes (2012), the mediator should not report it. If a mediator decides, during the course of the mediation, that the mediator will make such a report, the mediator must withdraw from the mediation.”

Opinion

“When deciding whether to report a past crime revealed during caucus, the mediator must ask him/herself several questions. First, is the statement a mediation communication? Second, as a mediation communication, does the statement qualify as one of the exceptions to mediation confidentiality … If the communication requires a mandatory report pursuant to chapter 39 (child abuse, abandonment, or neglect) or chapter 415 (abuse, neglect, or exploitation of vulnerable adults) of the Florida Statutes, the mediator has an ethical obligation to report it.

If the communication does not fall under the mandatory reporting exceptions, then the mediator must ask if it falls under any of the other exceptions to confidentiality. If the communication does fit within the definition of an exception, the mediator has the discretion to report.”

Exception for mediation communications related to crimes:

It states the communication must indicate the act was  ‘willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.’

Note that “the mediator’s obligation to explain confidentiality in the opening statement requires the parties be informed that communications made during the process are confidential, except where disclosure is required or permitted by law.”

(This is an excerpt from The Florida Supreme Court Mediator Ethics Advisory Committee. Opinion Number: 2013-003, Date of Issue: November 1, 2013.)

Biography



Gabriela Szlak is Director of the ODR Regional Program for the Digital Economy at the Latin American eCommerce Institute – ILCE, Consultant at eConfianza.org, a regional Trust Seal for eCommerce and at Mercosur Digital. She is an international speaker and author of articles and international observer at UNCITRAL WGIII on ODR. She is an ICT and Business Lawyer and a Prejudicial Mediator (Ministry of Justice) at Estudio ROSZ. She graduated as Lawyer with honours (University of Buenos Aires, Faculty of Law) and has postgraduate studies in eBusiness Management (Georgetown/USAL) and in Dispute Resolution. She lives in Buenos Aires, Argentina.


Rich Smukler is the president of Rich Smukler Mediation in Palm Beach Gardens, Florida, He conducts mediation with Zoom.
He is a:

Florida Supreme Court Certified Circuit Civil Mediator
Florida Supreme Court Certified Family Mediator
Florida Qualified Advanced Arbitrator
Finra Certified Arbitrator & Mediator