Depends on What the Meaning of "Litigation" is . . .

In AGO 2006-03, the Attorney General again reminded us of the excruciatingly narrow scope of the "litigation exemption" to the Sunshine Law found in Fla. Stat. §286.011(8). It seems that the Southwest Florida Water Management District wanted to meet in private session with its attorney to discuss settlement issues related an ongoing mediation involving the District and another public agency. The Attorney General concurred with the District's General Counsel, who had advised, in essence, that "mediation" pursuant to a contract is not "litigation" within the meaning of the statute.

There is no doubt that both the District's General Counsel and the Attorney General correctly interpreted the very strict language of the statute. But one has to wonder about the larger public policy issue here . . . since Florida law has always favored mediation as a means of alternative dispute resolution, what public purpose is served by a statutory exemption that doesn't allow government agencies to meet in private with their lawyers simply because they have successfully managed to avoid costly litigation by means of a contractual mediation provision? Is public policy somehow advanced by forcing the two agencies in this case to litigate, just so they can get confidential legal advice? Had the District filed suit in this case and then been ordered to mediate by the court, there is no doubt that the exemption would apply.

If the legislature truly believes that alternative dispute resolution is a good thing, then perhaps the litigation exemption should be broad enough to cover pre-suit mediation involving government agencies.