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

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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.”



 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

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