Observers in Mediation

            From time to time, mediation may include an observer whose presence is part of the training requirements set out in the Florida Rules for Certified and Court-Appointed Mediators, Rule 10.100. The rules require any person seeking certification as a county, family, dependency, or circuit mediator to fulfill a mentorship requirement that can be met by completing observations with an already certified mediator. For mediators, having observers is not just a way to advance the profession, but a way to fulfill the responsibility under Rule 10.690 to assist new mediators.

            An observer’s presence in mediation is always subject to the parties agreeing to allow an observer. This is in part to preserve the parties’ right to self-determination. If the parties agree to an observer, several of the responsibilities and protections mediators have are extended to the observer. One of those responsibilities is to maintain confidentiality as a mediation participant (see Florida Statutes 44.403 and 44.405). Observers also enjoy the same immunity the mediator has under Florida law (see Florida Statute 44.107).

            If you are a mediator asking a party if they will allow an observer, there are a variety of factors to take into consideration.

            First, consider if the conference is appropriate for an observer. Are there particularly sensitive issues? Have the parties already indicated they do not want anyone else present? If the answer is yes, it may not be a good case for an observer.

            Second, make sure your observer understands the importance of confidentiality and the parties’ right to self-determination. This means reminding the observer of their responsibility regarding confidentiality and that their participation is subject to all the parties’ approval.

            Third, provide the parties context as to why you are asking if an observer can be present. Letting the parties know that it’s part of the training and certification process, and that the confidentiality rule applies to observers, can help them in deciding on allowing an observer. Use caution, as the mediator you should not be attempting to persuade the parties but provide them with information on the mediation process so they may make their own decision.

            Finally, if you are a party being asked if an observer may be present, do not hesitate to ask the mediator any questions you have before making a decision. While it helps the profession to train new mediators, mediation is intended to empower the parties to make their own choices and that includes allowing an observer at your mediation.

            Nothing in this post should be construed or interpreted as legal advice. If you are in need of legal assistance, you should speak with a qualified licensed attorney.