Florida Mediation Confidentiality: Fla. Stat. § 44.405 Explained (2026)

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 2026

Fla. Stat. § 44.405 is the statute that makes Florida mediation confidential — and the statute that lists exactly when it is not. This guide quotes the operative language of § 44.405, the definitions in § 44.403, the civil remedies in § 44.406, and the family-law overlay in § 61.183.

What Does Fla. Stat. § 44.405 Protect?

Fla. Stat. § 44.405 is titled “Confidentiality; privilege; exceptions.” It is part of the Mediation Confidentiality and Privilege Act, ss. 44.401–44.406. Subsection (1) states the rule: “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.”

Two distinct protections live in this one section:

• A confidentiality duty (§ 44.405(1)) — a rule of conduct binding every participant, enforceable by civil remedies under § 44.406 and, in court-ordered mediation, by court sanctions.
• An evidentiary privilege (§ 44.405(2)) — a rule of evidence held by the parties that keeps mediation communications out of a later proceeding.

A common point of confusion: § 44.404 is titled “Mediation; duration” and governs only when a mediation begins and ends. It is not the confidentiality statute. Confidentiality is § 44.405; civil remedies are § 44.406; definitions are § 44.403.

What Counts as a “Mediation Communication” (§ 44.403(1))?

Section 44.403(1) defines it as “an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation.” Three consequences follow directly from that text:

• It covers writing and nonverbal conduct, not just speech — a settlement figure written on a legal pad, or a nod, can qualify.
• It reaches backward in time: pre-mediation communications count if made “in furtherance of a mediation.”
• It has a hard limit: “The commission of a crime during a mediation is not a mediation communication.”

Who is a “mediation participant” versus a “mediation party” (§ 44.403(2)–(3))?

A mediation participant under § 44.403(2) is “a mediation party or a person who attends a mediation in person or by telephone, video conference, or other electronic means” — which sweeps in accountants, appraisers, new spouses, and anyone else in the room or on the line.

A mediation party under § 44.403(3) is narrower: a person participating directly or through a designated representative who is a named party, a real party in interest, or would be one if an action on the subject matter were brought in court. The distinction matters because the confidentiality duty in § 44.405(1) binds every participant, while the privilege in § 44.405(2) is held by the party.

Section 44.403(4) defines the mediator as “a neutral, impartial third person who facilitates the mediation process,” whose role is to reduce obstacles to communication and facilitate voluntary agreements “without prescribing what the resolution must be.” Section 44.403(5) defines a subsequent proceeding as “an adjudicative process that follows a mediation, including related discovery” — so the privilege reaches depositions and document requests, not just the trial.

Who Holds the Privilege Under § 44.405(2)?

Section 44.405(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.”

The privilege is therefore two-directional: a party can decline to testify, and can block the mediator, the opposing party, an accountant, or any other attendee from testifying about what was said.

What if you terminate a multi-party mediation early (§ 44.405(3))?

Where a mediation involves more than two parties and one party gives written notice that it is terminating its participation, that party’s privilege covers “only those mediation communications that occurred prior to the delivery of the written notice of termination of mediation to the other parties.” Written notice is what starts the clock; oral withdrawal does not appear in the subsection.

What Are the Six Exceptions in § 44.405(4)(a)?

Section 44.405(4)(a) opens with the single most practically important carve-out: “there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise.” It then lists six categories of mediation communication that are not protected:

1. § 44.405(4)(a)1. — communications “for which the confidentiality or privilege against disclosure has been waived by all parties”;
2. § 44.405(4)(a)2. — communications “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence”;
3. § 44.405(4)(a)3. — communications requiring “a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report”;
4. § 44.405(4)(a)4. — communications “offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding”;
5. § 44.405(4)(a)5. — communications “offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation”;
6. § 44.405(4)(a)6. — communications “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.”

Each of the last four exceptions is expressly single-purpose. Section 44.405(4)(b) confirms it: a communication disclosed under subparagraph 3., 4., 5. or 6. “remains confidential and is not discoverable or admissible for any other purpose, unless otherwise permitted by this section.” Disclosure for one narrow purpose does not open the file for everything else.

Is the Signed Mediation Agreement Confidential?

By default, no. Section 44.405(4)(a) removes confidentiality and privilege from “a signed written agreement reached during a mediation, unless the parties agree otherwise.” That default is what makes a mediated marital settlement agreement enforceable and lets the court review and adopt it.

The words “unless the parties agree otherwise” are the drafting lever: parties who want a term kept out of the public record must say so in the agreement itself. In family cases, a consent order is prepared by the mediator and submitted to the parties and their attorneys under § 61.183(2), and once approved and entered “may be enforced in the same manner as any other court order.”

Does Mediation Make Otherwise-Discoverable Evidence Disappear (§ 44.405(5))?

No, and this is the most misunderstood subsection in the Act. Section 44.405(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.”

A bank statement, a tax return, or a business appraisal does not become privileged because someone handed it across the mediation table. What is protected is the communication about it in mediation — not the underlying document, which remains discoverable through ordinary channels.

Can You Waive Mediation Confidentiality (§ 44.405(6))?

Yes, and partially by accident. Section 44.405(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.”

The waiver is calibrated, not total. Telling the judge “we offered to split the retirement account at mediation” opens the door only far enough for the other side to answer that specific assertion. Under § 44.405(4)(a)1., a complete waiver requires all parties.

What Happens if Someone Breaks Mediation Confidentiality (§ 44.406)?

Section 44.406 is titled “Confidentiality; civil remedies.” Under § 44.406(1), any participant who “knowingly and willfully discloses a mediation communication in violation of s. 44.405” may, on application by any party, be subject to:

• § 44.406(1)(a) — equitable relief;
• § 44.406(1)(b) — compensatory damages;
• § 44.406(1)(c) — “attorney’s fees, mediator’s fees, and costs incurred in the mediation proceeding”;
• § 44.406(1)(d) — “reasonable attorney’s fees and costs incurred in the application for remedies under this section.”

Separately, § 44.405(1) provides that if the mediation is court ordered, a violation “may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney’s fees, and mediator’s fees.” Fee exposure under § 61.16 in a family case is discussed on our § 61.16 attorney’s fees guide.

How long do you have to sue for a breach (§ 44.406(2))?

An application for relief “may not be commenced later than 2 years after the date on which the party had a reasonable opportunity to discover the breach of confidentiality, but in no case more than 4 years after the date of the breach.” Two years from discovery, with an absolute four-year outer limit.

Section 44.406(3) adds one safe harbor: a participant is not subject to a civil action under the section “for lawful compliance with the provisions of s. 119.07” — Florida’s public records inspection statute.

How Does Confidentiality Work in a Florida Family Case (§ 61.183)?

Fla. Stat. § 61.183 is titled “Mediation of certain contested issues.” Under § 61.183(1), where “the issues of parental responsibility, primary residence, access to, visitation with, or support of a child are contested, the court may refer the parties to mediation in accordance with rules promulgated by the Supreme Court.”

Section 61.183(3) supplies a second, independent shield: “Any information from the files, reports, case summaries, mediator’s notes, or other communications or materials relating to a mediation proceeding pursuant to this section obtained by any person performing mediation duties is exempt from the provisions of s. 119.07(1).” In a contested custody or support case, then, both § 44.405 and § 61.183(3) apply.

Related statutes reached by that referral include § 61.13 for parenting plans and § 61.30 for support.

What Should You Assume Is — and Is Not — Protected?

• Protected: offers, concessions, and statements made during the session (§ 44.405(1)–(2)); pre-session communications made in furtherance of the mediation (§ 44.403(1)).
• Not protected: the signed written agreement (§ 44.405(4)(a)); a crime committed during mediation (§ 44.403(1)); documents that were already discoverable (§ 44.405(5)).
• Protected only for one purpose: disclosures made under § 44.405(4)(a)3.–6., which remain confidential for every other purpose per § 44.405(4)(b).

Frequently Asked Questions

Official Sources & Related Reading

• Fla. Stat. § 44.405, Confidentiality; privilege; exceptions — official text (Online Sunshine)
• Fla. Stat. § 44.403, Mediation Confidentiality and Privilege Act; definitions
• Fla. Stat. § 44.406, Confidentiality; civil remedies
• Fla. Stat. § 44.404, Mediation; duration
• Fla. Stat. § 61.183, Mediation of certain contested issues
• Florida Courts — Alternative Dispute Resolution
• Divorce Mediation — Practice Area
• Fla. Stat. § 61.052 — Florida Divorce Requirements

The information on this page is for general informational purposes only and does not constitute legal advice. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation.