Supreme Court affirms what is said in mediation, stays in mediation

Back to TopCommentsE-mailPrintBookmark and Share

A husband will not be able to offer as evidence comments made during a mediated settlement conference with his ex-wife, the Indiana Supreme Court has affirmed.  

In the matter of Dennis Jack Horner v. Marcia (Horner) Carter, No. 34S02-1210-DR-582, the Indiana Supreme Court rebuked the Indiana Court of Appeals conclusion that the confidentiality of mediation can be broken.  

Dennis Horner had wanted to provide testimony of what he said at the mediation as extrinsic evidence that a mistake had been made in the final settlement agreement. The trial court excluded the discussions. While the Indiana Court of Appeals affirmed the denial of relief, it ruled the trial court’s exclusion of the husband’s testimony was in error.

The COA’s findings surprised attorneys and mediators who noted caselaw supports the practice that everything said in mediation is confidential.

The Supreme Court affirmed the judgment of the trial court.

In a footnote, the Supreme Court noted the COA based its decision on a different approach presented in the Uniform Mediation Act drafted by the National Conference of Commissioners on Uniform State Laws. UMA would permit disclosure and discovery of conduct and statements made during mediation in certain circumstances.

However, the Supreme Court pointed out Indiana has not adopted the UMA rules. Instead, Indiana adheres to the Alternative Dispute Resolution Rule 2.11 which holds that evidence of conduct or statements made in compromise negotiations or mediation is not admissible except when offered for a purpose other than to prove liability for or invalidity of the claim or its amount.

“The Court of Appeals concluded that the husband’s statements during the mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement,” Chief Justice Brent Dickson wrote for the court. “Indiana judicial policy strongly urges the amicable resolution of disputes and thus embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation. The benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue.”



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Freedom From Religion Foundation: If you really want to be free from religion, don't go to the Christmas Play or the Christmas Pageant or the Christmas Parade. Anything with "Christ" or Saint...fill in the blank...would be off limits to you. Then leave the rest of us ALONE!

  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  3. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  4. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon