How Should Partial Settlements Be Reported in Multi-Party Cases?

Procedural posture and result

Advisory-opinion request concerning whether a mediator in multi-party litigation may identify the parties who reached a partial settlement when reporting the mediation outcome to the court. The committee concluded that the mediator may affirmatively report “agreement as to” the settling parties but may not add unauthorized descriptions, modifiers, comments, or recommendations.

What happened and what the authority decided

A Florida Supreme Court-certified circuit mediator who frequently handled multi-party commercial disputes asked whether a mediation report could identify by name the parties who reached agreement when only some participants settled.

The Mediator Ethics Advisory Committee reaffirmed that a mediator may report “agreement,” “no agreement,” or “partial agreement” to the court without comment or recommendation.

In multi-party litigation, the committee concluded that a mediator may report the result affirmatively by stating “agreement as to” and identifying the parties who reached the agreement.

MEAC explained that, unless the parties have agreed otherwise, a signed written agreement reached during mediation does not carry mediation confidentiality or privilege under the cited statutory exception. Accordingly, identifying the parties who reached the agreement in this limited affirmative manner does not violate mediation confidentiality.

The mediator may not add other descriptors or modifiers unless the parties have consented in writing or another applicable court rule authorizes the additional information. In certain circumstances, and with party consent, a report may also identify pending motions, outstanding legal issues, discovery matters, or other actions that could facilitate settlement.

What this tells the mediator

A mediator’s court report should communicate only the outcome the applicable rules authorize. In a multi-party case, the mediator may identify who reached agreement using the permitted affirmative formulation, but should avoid explaining why other parties did not settle or adding commentary that could disclose mediation communications or imply responsibility for nonsettlement.

Practical guidance

• Use the precise terminology allowed by the applicable procedural rule.
• Identify settling parties only in the permitted affirmative form.
• Do not characterize nonsettling parties or explain why settlement failed.
• Obtain written consent before including additional information.
• Use a standardized report form to prevent accidental over-disclosure.