May a Mediator Decide Whether an Agreement Is Full or Partial?

Procedural posture and result

Advisory-opinion request concerning whether a mediator may determine that a settlement is full or partial when the parties themselves have not made that determination, and under what circumstances the mediator may characterize the settlement that way in a report to the court.

What happened and what the authority decided

A Florida-certified mediator sought clarification of earlier MEAC opinions concerning reports of “agreement,” “no agreement,” and “partial agreement.” The mediator questioned whether a neutral could characterize an agreement as full or partial based on the mediator’s understanding of the parties’ confidential discussions when the parties themselves had not made that determination.

The Mediator Ethics Advisory Committee concluded that the mediator may ask the parties whether they consider their agreement full or partial, or alternatively whether it resolves all issues in the case. If the parties agree on the scope, the mediator may ask whether they want that determination included in their written agreement.

If the signed agreement states that it is full or partial, or the parties request that the mediator report it that way, the mediator may include that characterization in the court report.

The mediator may not, however, unilaterally determine that an agreement is full or partial based on personal observations of the mediation. MEAC explained that doing so could amount to making a substantive decision for the parties, compromise self-determination and impartiality, and potentially disclose confidential mediation information.

The opinion therefore directs mediators to facilitate discussion about settlement scope and allow the parties—not the mediator—to determine whether all issues have been resolved.

What this tells the mediator

The mediator may help the parties identify what remains unresolved, but should not decide the legal or substantive scope of their settlement. Whether an agreement resolves all issues or only some issues is a determination for the parties, or ultimately the court where the parties do not agree.

Practical guidance

• Ask the parties whether all pleaded and intended issues have been resolved.
• Invite the parties to state the agreed status in their signed document.
• Use only report descriptors authorized by rule and party consent.
• Do not infer resolution of an issue merely because it was not discussed.
• Keep the mediator’s interpretation out of the court report.