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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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