ILNews

Court finds mediation not so confidential

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

A decision earlier this year from the Indiana Court of Appeals has shaken the conventional wisdom that holds what is said in mediation stays in mediation and has raised the issue of how important confidentiality is in the alternative dispute resolution process.

The ruling came in Dennis Jack Horner v. Marcia (Horner) Carter, 34A02-1111-DR-1029. In the filing, the husband contended a mistake was made in the drafting of the mediated settlement divorce agreement and that the trial court erred in excluding the extrinsic evidence of this mistake.

soshnick-drew-mug.jpg Soshnick

On this point, the COA agreed that the trial court did err because the husband wanted to offer the mediation communications as evidence for a purpose other than those prohibited by the Alternative Dispute Resolution Rule 2.11.

The Horner case, decided by the COA in June, is headed to the Indiana Supreme Court.

Noting that the Horner decision has caught the attention of family law attorneys and judges across the state, Drew Soshnick, partner at Faegre Baker Daniels LLP, called it one of the two most significant decisions in family law within the last year. The other, he said, is Tricia L. Sexton v. Travis Sexton, 34A02-1111-DR-01059, which dealt with emancipation.

Attorneys and mediators have operated under the assumption, and caselaw has supported, that everything in a mediation is confidential. In the decision, Pamela S. Fackler v. Melvin J. Powell and M. Jack Powell Jr., Living Trust, 891 N.E.2d 1091, 1096 (Ind. Ct. App. 2008), the COA held the Alternative Dispute Resolution Rule 2.11 “expressly provide(s) that the parties may not waive the confidentiality requirement.”

With Horner, the court more narrowly construed ADR Rule 2.11 than in previous rulings. This, in Soshnick’s view, makes the Horner ruling more about what the court did not say rather than what it did say.

Specifically in Horner, the COA focused on the first sentence of Ind. Evidence Rule 4.08 which states, “Evidence … is not admissible to prove liability for or invalidity of the claim or its amount.”

The second sentence states that, “Evidence of conduct or statements made in compromise negotiations is likewise not admissible.” And the final sentence notes that compromise negotiations include alternative dispute resolution.

Soshnick believes the second and final sentences of Indiana Evidence Rule 4.08 could have been consequential to the decision.

Michael Kohlhaas, partner at Bingham Greenebaum Doll LLP, added that even if a mediated discussion does not directly address the validity or amount of claim, it is the whole reason why parties are in mediation. Still, he sees the decision as perhaps approaching the question of how can the court address possible mistakes because of miscommunication.

Writing for the court, Judge Nancy Vaidik stated, “Although confidentiality is an important part of the mediation, strict adherence to confidentiality would provide an undesirable result in this context – parties would be denied the opportunity to challenge issues relating to the integrity of the mediation process, such as a mistake, fraud, and duress.

“Allowing the use of mediation communication to establish these traditional contract defenses provides parties their day in court and encourages, rather than deters, participation in mediation.”

Family law lawyers see an opposite effect.

“I think for attorneys going into mediation with their clients, it’s going to cause them to be more thoughtful about how they communicate, what they say to the mediator or allow their client to say to the mediator,” Kohlhaas said.

Confidentiality is essential

The idea of opposing sides working together to reach a solution to their dispute was not initially given a warm acceptance. People still wanted to see someone in a robe making the decision, Soshnick said.

kohlhaas-michael-mug.jpg Kohlhaas

Over time, however, the use of mediation has become extremely common and almost preferred to a trial. The practice is utilized in a large percentage of personal injury cases, business contract disputes and family law cases.

“It’s good for families because it’s an easy, better way to resolve disputes,” Soshnick said. “It’s less expensive, more creative and typically provides unique solutions.”

Mediation is almost always suggested by one or both of the attorneys in these cases, or the court will likely order that the parties take a stab at reaching a settlement themselves, Kohlhaas said.

The advantage to mediation is that the parties can, as Soshnick pointed out, reach a unique solution that fits their particular situation.

Deborah Farmer Smith, managing partner at Campbell Kyle Proffitt in Carmel, describes being a mediator as her most favorite thing. The brainstorming that leads the parties to explore options and listen to each other can render creative solutions that the individuals and their lawyers might not have found. Moreover, the final agreement can contain elements that a court could not order.

“Judges can care a lot about people and they do,” Farmer Smith said. “Judges want to do their best but it remains that judges don’t have the luxury of being as detailed in an order as lawyers have in an agreement.”

smith-deborah-mug.jpg Farmer Smith

When both parties want to settle a matter and want the conflict to be over while accepting they are not going to get everything they want, the result of the mediation has pretty good staying power, Farmer Smith said. It is when the parties are not done with each other emotionally that disputes can arise after an agreement is signed.

A key in the process is the confidentiality that surrounds mediation. With limited exceptions, such as those for an admission of a crime or child abuse, all statements made in mediation are private.

In agreeing with Soshnick’s view of the Horner decision, Andrew Mallor, of Mallor Grodner LLP in Bloomington, emphasized the importance of confidentiality.

He is concerned that Horner could open a door allowing individuals to raise issues with the settlement after the agreement has been signed. It is contrary to previous court decisions on the confidentiality of mediations and could bring about more litigation as disgruntled parties, citing Horner, say the language in the document is not what they intended.

The protection of confidentiality encourages individuals to “take extreme steps to compromise,” Soshnick said. If the parties are worried that taking the extra step could come back to hurt them if the case lands in court, they might be more cautious.

“It may have a chilling effect on what people say and how they say it,” he said.

Farmer Smith agreed with the other attorneys that the Horner ruling could make the parties less open in mediation sessions but, at present, she said, the COA decision served as a reminder to attorneys to make certain when an agreement is drafted that both sides understand what the words say.

Mediation sessions can go on for hours and the parties can get tired, which heightens the possibly of rushing to just get something done. Clients, frequently overwhelmed and stressed by the process, easily can become confused and sign an agreement while not fully aware of all the terms in the document.

Even if the Supreme Court upholds Horner, mediation will still be a valuable tool for dispute resolution, the attorneys said.

Farmer Smith does not see the decision as the first step on a slippery slope. Nothing is in the opinion, she said, that gives her a reason to believe the court will continue down the Horner path. •

ADVERTISEMENT

  • Truth
    The truth ought always trump confidentiality. It can't be the purpose of mediation to help one party to trick anorher or to profit from a mistake.

Post a comment to this story

COMMENTS POLICY
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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

ADVERTISEMENT