Is What Happens in Family Mediation Really Confidential and Private?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Sydney Mitchell:
Welcome everyone to today’s episode of Mediate This. My name is Sydney. I’m sitting here with Matthew. Matthew, how are you today?

Matthew Brickman:
Good,

Sydney Mitchell:
Good. Uh, today we are gonna be tackling, uh, a question from one of our listeners, and I’m just gonna read the question and let’s dive straight in. The question reads, and this is a really interesting one, so I’m really excited personally to to hear what insight you have on this. Matthew. The question is, what happens when a judge requests a mediator’s files is what happens in family mediation, genuinely confidential and private. Um, as we think about family mediation and, and divorce mediation, I mean, there are so many sensitive pieces of information and documentation that, I mean, I would wanna know too, you know, as, as documents are being passed between mediators and attorneys and judges and how does everything stay confidential and, and what, uh, what actions are being taken to ensure that that is the case.

Matthew Brickman:
So there’s a number of documents which are public record, and that’s, Yeah. I mean, a, a lot of them are public record. Um, so for a, for, for example, when, when somebody files for divorce, the petition is public record. The, the counter petition or the reanswer public record. Um, and what is not available is public record is like discovery. Like things like, like for example, somebody may, somebody may finally a financial affidavit that has all their income and their assets on it. I

Sydney Mitchell:
Was just gonna say a financial affidavit is probably one of those things that

Matthew Brickman:
Was, Yeah. Um, and they have to provide all the supporting, uh, document. You can’t just say, Yeah, I’ve got, uh, you know, $25,000 and an account. You need to show the documentation. Now the documentation is exchanged between the attorneys. Um, sometimes they give that to me. Sometimes. I mean, I’ve, I’ve, I’ve had attorneys that send me like 300 page PDF that has their entire discovery file. The, the parties, all of their discovery bank statements, credit card statements, retirement accounts, everything. And I’m like, Okay, I don’t need all of this. I’m not a judge, but they just like send it to me and I’ve got it or whatnot. And so many times, Sidney, when I get it, it makes no sense to me because without context, I don’t know what I’m looking at. Right. And so all of the backup documentation, let’s say for example, to the financial affidavit is private and confidential. That’s the attorney’s work product. They don’t, they they don’t produce that to the general public. That’s not part of the file that goes online. Um, they, they may have to uh, show that as evidence in a trial, maybe. Possibly, but no. Um, but um, you remember that, you know, in one of our previous episodes, you know where we talked about like the opening statement. Remember the opening statement

Sydney Mitchell:
That you gave at the beginning of your mediation?

Matthew Brickman:
Yeah, yeah. They remember part of the opening statement is everything we talk about in mediation is private and confidential. The only, it’s not confidential. As if I find out that you’re abusing somebody committing a crime, well then I have to report that. Other than that, everything we talk about is confidential. Okay. Now this question says what happens when a judge requests a mediator’s file is what happens in mediation. Really confidential. In private. So let’s go look at a mediation agreement, cuz we have talked about this before when we were talking like in the mediation agreements, there’s a section at the end that says it is acknowledged by both parties and counsel, if any, that if the parties should waive all the rules of confidentiality. And the mediator should be requested to come to court and testify that the mediator will be testifying as a material witness, not an expert witness. And regardless of what capacity the mediator is called to testify in, if at any time the mediator is called to testify regarding a case for any reason, the requesting party it, um, is then responsible to pay my fees. Okay? So there’s a waiver there that they say, Okay, look, you know, if everybody waves confidentiality, well then I’m gonna come in and testify. Okay, well let me just put it out there. Then. In 15 years, in 2,700 plus mediations, this has happened five times. A handful, one handful, five times. It is a rarity.

Sydney Mitchell:
I was gonna say that it’s encouraging to know whoever submitted this question, you are okay,

Matthew Brickman:
<laugh>. Yeah, You’re okay. Like it’s well, and, and, and, and it gets better because in 2,700 mediations, five times I had been subpoenaed to come to court to testify. And so the question is, what happens when a judge requests my files? Okay, first off, they don’t request my files. Um, the only

Sydney Mitchell:
They request the attorney’s files.

Matthew Brickman:
No, no. When I’ve been subpoenaed to come in, I’m coming in to testify. There’s no files. Now I’m instructed in the subpoena to bring whatever documentation I may need in order to testify. Okay.

Sydney Mitchell:
But it’s not handed to them.

Matthew Brickman:
No. So usually, you know what the documentation is, Sydney, It’s the agreement that I drafted mm-hmm. <affirmative> that the parties have signed off on, which is public record because they signed it, the judge signed it, and it’s sitting in on the docket. Fine. But what’s happened? And, and so, so there’s part one, what happens when a judge requests a mediator’s files, they do not request a mediator’s files. But number two is what happens in family mediation. Really confidential and private. Yes. To a point. So going back to that statement that says, well if everybody waves the rules of confidentiality and I get called in to testify, then you know that I’m coming in as a material witness, not an expert witness. Well, here’s the deal, I could be, everybody has to waive, and that’s a rarity cuz you’re talking to everybody, the attorneys, the parties.

Matthew Brickman:
Like you could have husband and husband’s attorney and wife’s attorney, but the wife says, No, I’m not coming. Or the husband and wife and the husband’s attorney can say yes, and the wife’s attorney says, No, I’m not. Like everybody has to say yes or it doesn’t happen. Okay? So if I come in and testify, I am still extremely limited on what I can talk about. I can’t talk about all the negotiations. I can’t say, well, Sidney said this and then Matthew said that, and then Sid said this back and then Matthew offered this, and Sidney rejected. No, no, no, no, no, no. That’s private and confidential. I

Sydney Mitchell:
Mean, do you even write that stuff down anyways?

Matthew Brickman:
Yes. Oh, every,

Sydney Mitchell:
Every, every offer interaction, everything.

Matthew Brickman:
Document. Sidney look, I have to, because most of the time re all. Okay. Remember when you came with me to mediation and they were in separate rims, right? Yeah. Do you think I’m gonna remember back and forth, back and forth, back and forth.

Sydney Mitchell:
Yeah. That’s what I was also thinking. I was like, I don’t even know through an entire mediation how you remember everything. That does

Matthew Brickman:
Make sense. Yeah. Yeah, yeah. I mean, especially if we’re going back and forth with offers. No, no, no, no, no, no. And sometime sometimes, like one of the attorneys would be like, Okay, what did that sounds a lot like what they offered before. And I’m like, well, it was except for this one piece. Well, I would know that if I didn’t write it down. Sure, sure. Right. So, so yes, I have all of that. I can’t talk about that. But here’s the deal. When I’ve been subpoenaed to come in and testify, this is why every single time all five times it was, Oh no, no, let me back up. Well, yeah, all five times I drafted the mediation agreement. Either the parties were trying to then invalidate it and say, Ooh, I was under duress, or I was coerced, or I was forced, or oh, whatever.

Sydney Mitchell:
By whom

Matthew Brickman:
They said that I did.

Sydney Mitchell:
Okay. That’s what my assumption

Matthew Brickman:
Was. Yeah. I mean, I mean, for example, all right, I’ll tell you about each of them. The first one ever that I got subpoenaed on, the mother stated that she was in mediation for 10 hours, not allowed to go to the bathroom, not allowed to eat anything, paid a thousand dollars and, you know, was forced to sign the agreement. Okay, well that was really easy. So of course. And so therefore, Your Honor, I was under duress and forced to sign this. You should set it aside. So they subpoenaed me to come in and the judge said, Okay, so Mr. Brickman, um, do you know what happened? I didn’t even have to say what happened. I simply brought in her credit card receipt, which showed that she paid $350. Okay? Liar wasn’t a thousand. I also brought in my own at and t cell phone log that showed that I was on the phone with my grandmother and my mom and friends all afternoon and evening. Mm-hmm. <affirmative>. Okay, how can I be in mediation with you for 10 hours if I’m on the phone with these people for hours? Okay. Liar. So it was, so all I had to do was bring in those two things and she is a liar. And the judge reprimanded her, told her like, No, not setting it aside. Okay. That was easy.

Sydney Mitchell:
Yeah. I don’t know how people make claims like that and

Matthew Brickman:
Expect Sydney. Sydney, here’s another one. Oh, no. So mom again, Mom, um, who is pregnant? We were on the 10th floor of an office building in the same building, I believe as dea, fbi, nsa, Homeland Security, some, somebody, some, some government. Any

Sydney Mitchell:
About important.

Matthew Brickman:
Yeah, Yeah. Anyway, we are in mediation and we are about in, we are, we are right about like at the end to sign and all of a sudden the alarms start going off. We have to be evacuated. So they evacuate the entire building. We go downstairs, and I think this is like in July in Florida.

Sydney Mitchell:
Yuck.

Matthew Brickman:
We’re standing outside for like an hour, you know, for the, for the fire department to come to clear the building, blah, blah, blah. And so I’m standing there, the dad is standing there with his attorney. The mom is standing there, she doesn’t have attorney member, She’s pregnant, We’re all downstairs, we’re waiting. She’s on the phone, I’m on the phone, Everyone’s calling, doing whatever. And then they said, Okay, you’re clear to go. So then now we have to go back in. But everybody in the entire building trying to get back in, do you no longer take to get back to the 10th floor in an elevator. So what did we do? We started in a single file line, like a bunch of ants. We started climbing the stairs. Mm-hmm. <affirmative>, mom, pregnant, myself, dad, dad’s attorney. We climbed 10 flights of stairs. We go back in, we negotiate for one more hour and then sign, and then mom files, duress, coercion.

Matthew Brickman:
So off to, and so of course I get subpoenaed to go. I didn’t even have to do anything. The attorney brought in the Palm Beach County Fire Department’s record and then brought in, um, the, or no, I I take it back. I brought in the DocuSign because we ended up DocuSign it. Um, even though we were in person, I, I, I really like the DocuSign cause everything is time and date stamped. So what was interesting was between those two, you know, the father or the, the father’s attorney said, Okay, we were evacuated, right? And we went downstairs and we waited for an hour. Anytime you sh you could have said, I’m not staying and left, but no. Did you not walk up the stairs, 10 flights pregnant, come back in and mediate, negotiate for another hour? And then is this not your signature on DocuSign that you signed with your cell phone? Like you’re not a address. You could have left it any time when they evacuated the building and without having to go back in and climb 10 flights, stairs

Sydney Mitchell:
Of all <laugh>. It’s just funny cuz of all situations for somebody to make that claim. That’s the one

Matthew Brickman:
I know well, okay, so then I had another one where the two attorneys, now they, they, these two were, um, were represented. The husband and wife, they were both, and the attorneys were arguing over the language of the agreement. And the judge said, who wrote the agreement? They said, the mediator wrote it. The judge goes, Well then I want to talk to the author. I want to know why he wrote what he wrote. Now I cannot talk about the negotiations that led to it, but I can certainly say, well, what does this sentence mean? And what is the, and then what does the following sentence mean? Right? And so the judge asked me a couple questions, What does this mean? And I said, Okay, well here’s the first sentence. This is what this means. And then this is what this was meant to be. And the judge, it clarified for the judge, the judge goes, Wait a second.

Matthew Brickman:
These two sentences aren’t in conflict with one another. The second sentence dovetails off of the first one. I get it. And so they just need, I was not allowed to talk about what happened. And so is it really confidential in private? Yeah. I mean, you know, now the one time it wasn’t, and this was a story that I heard. I was not the mediator the one time that, that not everything was confidential. And this was a, um, oh, this was a foreclosure mediation. Okay. Not, not family. And what happened was in the middle, you know, unfortunately, look, the foreclosure attorney is there doing their job on behalf of the bank. Nothing personal, but they were taking this guy’s house. Well, this guy was that they were taking his house. And so he got up, walked over, grabbed something to drink, grabbed the stapler off the table, and whacked the attorney upside the face and broke his nose. Yeah, well guess

Sydney Mitchell:
<laugh>.

Matthew Brickman:
My god. So, so, so of course Sidney, after hearing that story, I’m like, okay, clear the room of dangerous objects. Right?

Sydney Mitchell:
For real.

Matthew Brickman:
Yeah. And so and so, yeah. So look for, and I believe like in the civil matter for the lawsuit or whatever they had to talk about. Yeah. And this is what happened in mediation, you know, So was his act confidential? Well, no, because he broke the law. And now here’s, here’s, here’s another time that not everything was private and confidential and it happened because remember I told you I have an opening, everything is confidential unless I find out that you are abusing somebody or committing a crime. Well, this was when I was doing small claims court and I was, I was in Port St. Lu doing small claims court. And I find out as I’m helping the two parties negotiate that one party did a home invasion, stole the guy’s stuff, put it in a storage unit, and is blackmailing him. And the other guy has sued him to get his stuff back.

Matthew Brickman:
Well, I find out as the mediator that he is actively engaged in a crime. So I, I have a duty to report it. So all of a sudden, right, not exactly confidential in private, but I went out, I had to, I had to get up, I had to go out and talk to the bailiff cuz we were in the courthouse. I talked to the bailiff, the bailiff took me to the judge chambers, the judge who was ex-marine really nice to the guy. The bailiff goes, uh, can you tell the judge what you just found out as the mediator? I’m like, Oh, here’s what’s going on. So no, it’s not confident. That was not so say

Sydney Mitchell:
That’s gonna be public record anyway.

Matthew Brickman:
Well, no, no, not even public record. I have a duty to report it. Like, you know, like, look, if, if a wife is being beat up or a husband is being beat up. Oh right, right. There’s, if there’s current ongoing domestic, I have to report it. There’s domestic,

Sydney Mitchell:
I’m just saying the person can’t, the person should not expect that to fly under the radar anyway.

Matthew Brickman:
Yeah. Well, but yeah, Sydney, here’s where these guys went wrong. I did my opening and I said, If I become aware that you’re abuse or committing a crime, okay, pay attention to if I become aware, if you are, don’t tell the mediator, right? So I go in, I go in and tell the judge, the judge says, tells the bailiff, you go in there and you tell him to dismiss this case immediately. Give him his stuff or, or they’re not walking outta this courtroom out of, or walking outta this courthouse unless they’re in handcuffs. And so the bailiff and I go back in there and said, Look, you’re gonna dismiss your action. You’re gonna tell him where his stuff is, or the judge is getting involved and you’re not leaving here, uh, without nice, nice shiny pair of bracelets. Guess what? Mediation was over the guy got his stuff.

Matthew Brickman:
No more blackmail. But, you know, but that was confidential in private until, but it, it fell under the rules of, unless I find out that you’re abusing somebody or committing a crime. So those are some examples of is it really confidential? Yeah. I’ll give you one more. I did have a mediation where again, they were arguing over the language and the mother and, and for some reason it’s been three moms asking to have these things set aside. And it’s like, and all three judges. The the last judge goes, Ma’am, I’m sorry that you don’t like today’s a or yesterday’s agreement today, but this is your signature, right? Yep. These are your initials. You hadn’t said, Look, if we undid every single agreement that somebody didn’t like after the fact, we’d have nothing but anarchy. No, I’m not setting it aside. But another judge wouldn’t even listen to any of the, any of the testimony.

Matthew Brickman:
She simply handed me the agreement in question and said, Mr. Brickman, is this your agreement that you helped negotiate? And you, and I’m like, Well, let me look at it. So the, so the bailiff gave it to me. I looked through it and I said, Yes, this is my agreement. And she said, This is the most well written, detailed, micromanaged agreement I have ever seen. I am not setting it aside, Get outta my courtroom. Like she was that the, even that, that the parties even wasted her time because she said, This is your signature, this is your initials, this is a well written agreement. Stop wasting this court’s time. I’m not setting it aside. She wouldn’t even listen to anything that anybody had to say. So is it private and confidential? Yeah, I mean, there is privacy and confidentiality and mediation. So hopefully that answers that person’s question.

Matthew Brickman:
The judge is not gonna request my file. The only thing that I’m allowed to produce to the court is a mediation conference report that says that mediation happened and the parties either got a full agreement, a partial agreement, a partial temporary agreement, or no agreement or mediation didn’t happen. That’s it. Like they don’t get, he said that she, I actually had someone that actually emailed me after mediation said, Matthew, your report is very blank. It just says impasse. It doesn’t talk about all the negotiations. I said it can’t because it is not to influence the court. The court says go to mediation, create whatever you want. If you can’t, we’ll then find, we’ll decide. I can’t taint the court. I can’t say, Well he said, she said, she said, he said he offered she off. No, the judge gets okay, they came, they tried, they couldn’t figure it out. So you know what? You’re gonna listen to all the evidence. You are gonna then make the ruling.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.