Neutrality, Disclosure and Conflicts
Four decades of legal experience across complex public-sector, land use, real property, and civil disputes.
Choosing a neutral is a decision the parties make together. Before agreeing on a mediator or arbitrator, each side is entitled to know what relationships that person brings to the matter. This page sets out how I handle that question, so you can evaluate it before your client commits to a date.
Four decades on more than one side
Much of my practice has been on the public-sector side of the disputes I now mediate. I have served as city attorney for Florida municipalities, advised local governments on land use and property acquisition, and defended public entities in litigation. I have also represented private property owners, businesses, developers, and associations adverse to governmental entities in many of those same categories.
That background is why counsel select me: I understand how these decisions actually get made, what a commission can and cannot approve, and where the practical constraints sit on each side of the table. It is also the reason disclosure matters here more than it might for a neutral without a substantive practice behind them. I do not treat those two facts as in tension. The first is the value; the second is the discipline that makes the first usable.
The standards I apply
As a Florida Supreme Court certified circuit and appellate mediator, I am governed by the Florida Rules for Certified and Court-Appointed Mediators. Rule 10.340 places the burden of disclosing any potential conflict of interest on the mediator, and requires disclosure of any significant past, present, or promised future relationship with a party to the mediation. Disclosure must be made as soon as practicable and in a manner that lets the parties freely exercise their right of self-determination in selecting a mediator. Where a conflict clearly impairs impartiality, disclosure and consent are not enough — the mediator must withdraw.
In arbitration the standard is statutory and stricter in consequence. Section 682.041, Florida Statutes, requires an arbitrator to disclose known facts that a reasonable person would consider likely to affect impartiality, including any financial or personal interest in the outcome and any existing or past relationship with a party, counsel, or a witness. Nondisclosure can be a ground to vacate an award under section 682.13. I apply that standard to every arbitration engagement and treat the obligation as continuing through the proceeding.
How conflicts are screened
- Before a date is confirmed — not after — I ask for the names of every party, their parent and affiliated entities, and all counsel of record.
- Those names are run against the entire client database of Shepard, Smith, Hand & Brackins, P.A., not only against my own matters.
- I will not serve as a neutral in any matter involving a current client of the firm.
- I will not serve in any matter involving a party or counsel the firm has represented within the preceding 5 years without written disclosure to, and the agreement of, all parties.
- I disclose any pending matter in which I or the firm is a party adverse to a participant or to counsel.
- The obligation continues after the engagement begins. If a relationship comes to my attention mid-process, I disclose it promptly rather than at the end.
Florida Redevelopment Association
I serve as General Counsel to the Florida Redevelopment Association. That is a role advising the association itself; it does not make me counsel to individual member agencies. Because most Florida community redevelopment agencies are FRA members, I disclose this relationship as a matter of course in any matter involving a CRA — whether or not that agency is a member — so all parties can weigh it before agreeing on a neutral rather than learning of it afterward.
No engagements arising from a mediation
Rule 10.330 prohibits a mediator from using a mediation to solicit or procure future professional services. Because I remain affiliated with a law firm practicing in many of these same subject areas, I commit beyond that rule: neither I nor the firm will accept a representation arising out of, or involving the parties to, any matter in which I have served as a neutral.
Raising a concern
If you are evaluating me as a neutral and want to surface a relationship before your client commits, call or write. That conversation is welcome and there is no charge for it. A disclosure made before a date is reserved costs nothing.
