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DTCI: Mediation confidentiality

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kyrouacBy Scott M. Kyrouac

The Indiana Supreme Court in Dennis Jack Horner v. Marcia (Horner) Carter, 34S02-1210-DR-582, corrected the Indiana Court of Appeals opinion that the confidentiality of mediation can be broken.

In this case, the husband Dennis Horner wanted to provide testimony about what he said at the mediation as evidence that a mistake had been made in drafting the final settlement agreement. The trial court excluded testimony about the confidential discussions. The Indiana Court of Appeals affirmed the denial of relief but indicated that the trial court’s exclusion of the husband’s testimony was in error.

Attorneys and mediators support the decision that what is said in mediation is confidential. The Indiana Supreme Court noted the Court of Appeals had based its decision on 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, 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 inadmissible except when offered for a purpose other than to prove liability for or invalidity of the claim or its amount. Chief Justice Brent Dickson wrote:

“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.”

As both a mediator and as an attorney, this author welcomes the Supreme Court’s clarification and continued protection of the confidential nature of mediation.•

Mr. Kyrouac is the current Indiana Representative to DRI and is a former president of the association. He is a partner in Wilkinson Goeller Modesitt Wilkinson & Drummy in Terre Haute. The opinions expressed in this article are those of the author.

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  1. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  2. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  3. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  4. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  5. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

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