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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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