Florida Statutes
Fla. Stat. § 44.405 (2025)
Confidentiality; privilege; exceptions.
✓ 2025 Florida Statutes — current through the 2025 Regular Session
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44.405 Confidentiality; privilege; exceptions.—
(1) Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel. A violation of this section may be remedied as provided by s. 44.406. If the mediation is court ordered, a violation of this section may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney’s fees, and mediator’s fees.
(2) A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.
(3) If, in a mediation involving more than two parties, a party gives written notice to the other parties that the party is terminating its participation in the mediation, the party giving notice shall have a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding only those mediation communications that occurred prior to the delivery of the written notice of termination of mediation to the other parties.
(4)(a) Notwithstanding subsections (1) and (2), there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or for any mediation communication:
1. For which the confidentiality or privilege against disclosure has been waived by all parties;
2. That is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence;
3. That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report;
4. Offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding;
5. Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation; or
6. Offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.
(b) A mediation communication disclosed under any provision of subparagraph (a)3., subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6. remains confidential and is not discoverable or admissible for any other purpose, unless otherwise permitted by this section.
(5) Information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation.
(6) A party that discloses or makes a representation about a privileged mediation communication waives that privilege, but only to the extent necessary for the other party to respond to the disclosure or representation.
Notes of Decisions
Cited in 24
cases (2 in the last 5 years), 2005–2023 · leading case: Maplewood Partners, L.P. v. Indian Harbor Ins., 295 F.R.D. 550 (S.D. Fla. 2013).
Maplewood Partners, L.P. v. Indian Harbor Ins., 295 F.R.D. 550 (S.D. Fla. 2013). “Shashy matter mediation documents, miscellaneous documents Plaintiffs have withheld from production five documents (related to the mediation of the Shashy matter — which concluded five years ago) as to which Plaintiffs assert solely a mediation privilege, pursuant to Fla. Stat.…”
Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). “, § 44.405, Fla. Stat. (2006) (providing a privilege for all mediation parties regarding mediation communication); § 90.”
Trytek v. Gale Indus., Inc., 3 So. 3d 1194 (Fla. 2009). “lude that a trial court has the discretion to make a determination that neither party has prevailed on the significant issues in litigation after a thorough examination of all the factors, including the issues litigated, the amount of the claim of lien versus the amount…”
Rodriguez v. Marble Care Int'l, Inc., 863 F. Supp. 2d 1168 (S.D. Fla. 2012). “Specifically, the Rule provides: “All proceedings of the mediation shall be confidential and are privileged in all respects as provided under federal law and Florida Statutes § 44.405. 14 The proceed *1182 ings may not be reported, recorded, placed into evidence, made known to…”
Bradfield v. Mid-Continent Cas. Co., 15 F. Supp. 3d 1253 (M.D. Fla. 2014). “Pursuant to Florida Statute § 44.405, all mediation communications shall be confidential, and participants shall not disclose a mediation communication to a person other than another mediation participant or a participant's counsel.”
Williams v. Williams, 939 So. 2d 1154 (Fla. 2d DCA 2006). “See § 44.405, Fla. Stat. (2005). [3] The Husband waived the attorney-client privilege, enabling the attorney to testify at the hearing.”
Fid. & Guar. Ins. v. Ford Motor Co., 707 F. Supp. 2d 1300 (M.D. Fla. 2010). “Fidelity responded that, at the time, it only had an oral “understanding with the Thompsons that was not yet reduced to writing” and was therefore “forbidden” from informing the State Court of the settlement pursuant to the mediation privilege in Fla. Stat. § 44.405 (4). For a…”
Wells Fargo Bank, N.A. v. Larry M. Richards, 226 So. 3d 920 (Fla. 4th DCA 2017). “" § 44.405(2), Fla. Stat. (2016). The attorneys bringing this appeal did not represent the bank in the circuit court.”
Travelers Indem. Co. of Connecticut v. Attorney's Title Ins. Fund, Inc., 194 F. Supp. 3d 1224 (M.D. Fla. 2016). “Section 10’s second argument against Plaintiffs’ cooperation defense focuses on Florida’s Mediation Privilege Statute, Fla. Stat. § 44.405 . Section 10 argues this statute required ATIF to keep all settlement negotiations and discussions confidential, and therefore ATIF did not…”
In Re Petition of Dispute Resolution Rules, 931 So. 2d 877 (Fla. 2006). “[12] Section 44.405(4)(a), Florida Statutes (2005), provides: Notwithstanding subsections (1) [confidentiality] and (2) [privilege], there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or…”
Grubaugh v. Hon blomo/lawrence, 359 P.3d 1008 (Ariz. Ct. App. 2015). “Fla. Stat. § 44.405 (4)(a)(4) (West 2004) (specifically exempting from the mediation privilege those communications “[ojffered to report, prove, or disprove professional malpractice occurring during the mediation”).”
Sun Harbor Homeowners' Ass'n v. Bonura, 95 So. 3d 262 (Fla. 4th DCA 2012). “See § 44.405(1), Fla. Stat. (2009) (“[A]ll mediation communications shall be confidential.”
— 44.405(1) — 6 cases
Trytek v. Gale Indus., Inc., 3 So. 3d 1194 (Fla. 2009). “lude that a trial court has the discretion to make a determination that neither party has prevailed on the significant issues in litigation after a thorough examination of all the factors, including the issues litigated, the amount of the claim of lien versus the amount…”
Sun Harbor Homeowners' Ass'n v. Bonura, 95 So. 3d 262 (Fla. 4th DCA 2012). “See § 44.405(1), Fla. Stat. (2009) (“[A]ll mediation communications shall be confidential.”
Anderson v. McDonough, 189 So. 3d 265 (Fla. 2d DCA 2016).
Maggy Hurchalla v. South Florida Water Mgmt. Dist. (Fla. 4th DCA 2019).
Brickell Fin. Servs. - Motor Club, Inc. d/b/a Road Am. Motor Club & Road Am. Motor Club, Inc. v. Road Transp., LLC d/b/a Roadsidemasters.com (Fla. 4th DCA 2020).
— 44.405(2) — 1 case
Wells Fargo Bank, N.A. v. Larry M. Richards, 226 So. 3d 920 (Fla. 4th DCA 2017). “" § 44.405(2), Fla. Stat. (2016). The attorneys bringing this appeal did not represent the bank in the circuit court.”
— 44.405(4)(a) — 2 cases
In Re Petition of Dispute Resolution Rules, 931 So. 2d 877 (Fla. 2006). “[12] Section 44.405(4)(a), Florida Statutes (2005), provides: Notwithstanding subsections (1) [confidentiality] and (2) [privilege], there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise, or…”
Brickell Fin. Servs. - Motor Club, Inc. d/b/a Road Am. Motor Club & Road Am. Motor Club, Inc. v. Road Transp., LLC d/b/a Roadsidemasters.com (Fla. 4th DCA 2020).
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