ILNews

IBA: Pre-Mediation Communications

Back to TopCommentsE-mailPrintBookmark and Share

By John R. Van Winkle, Van Winkle Baten Dispute Resolution
 

vanwinkle-john-mug.jpg Van Winkle

The mediation process for complex disputes has evolved over the past twenty years and now commonly involves numerous pre-session communications, exchanges of documents and multiple sessions, extending over weeks or even months. Many disputes require what amounts to a “mediation over a mediation”. Issues arise as to what extent these pre-session exchanges are protected by the confidentiality provisions of the Indiana ADR Rules.

Indiana’s ADR Rules Do Not Specifically Address These Issues

Indiana ADR Rule 2.11 provides generally that mediation is to be governed by Evidence Rule 408. Unlike some states, however, the rules do not define mediation communications nor clearly delineate when a mediation begins and ends. There are, however, some provisions which support a broader scope for the application of confidentiality. ADR Rule 1.3, for example, defines mediation as a “process” and Rule 2.1 states that mediation is a “confidential process.” If, therefore, the “process” is defined as broader than an individual session, courts could conclude the confidentiality rules apply to the broader process and not just the activities during the mediation session. Support for this broader consideration of “process” is found in ADR Rule 2.7(A). That rule provides that a party may terminate a “mediation” at any time “after two (2) sessions have been completed”, clearly implying that mediation encompasses more than just the day or days of the sessions. Further, both ADR Rule 2 and Rule 7 set forth requirements and disclosures that by their nature must be performed before or after a session.

The Uniform Mediation Act Specifically Protects Pre-Mediation Communications

In 2001, after thorough and detailed study, initiated in part by the ABA’s Section of Dispute Resolution, the National Conference of Commissioners on Uniform State Laws approved the Uniform Mediation Act (“UMA”), adopted to date by twelve states.

The UMA specifically protects communications that occur “during a mediation” but also protects as confidential any additional statements

“…which are made for the purposes of considering, conducting, participating in,

Initiating, continuing or reconvening a mediation or retaining a mediator.”

UMA Sec. 2.2

This definition is broad enough to cover all statements and exchanges made conducting a “mediation for a mediation” and makes clear that counsel’s conversation with potential mediators and pre-session conversations with the mediator are protected.

Since complex mediations often require numerous conversations and communications to plan, convene and arrange the actual mediation, it is important to be clear that such activity is protected. Because, however, complex mediation can extend over weeks and months, the drafters of the UMA considered the potential for abuse if lawyers attempt to bring pre-mediation or interim mediation communications under the confidentiality protection for the wrong reasons. The drafters suggested that the privilege and communication should be restricted to those that a “party would reasonably believe would be confidential.”

As to when a mediation “starts” and “ends” the UMA drafters elected to leave that issue to the discretion of courts on a case by case basis.

Rules in other states, and cases interpreting them, have adopted the UMA’s broader confidentiality scope. California’s statute, for example, provides as follows:

“’Mediation consultation’ means a communication between a person and a mediator for the purpose of initiating or considering, or reconvening a mediation or retaining a mediator”. Cal.Evid.Code 1115(c)

The California Supreme Court recently further defined and broadened communications made “for the purpose” of mediating to include pre mediation statements between an attorney and his own client. Casel v. The Superior Court of Los Angeles County, 244P.3d 1080 (Cal 2011).

Although, as mentioned, Indiana has not adopted the UMA, our ADR Rules are generally consistent with that Act’s approach and, more importantly, as early as 2000, the Indiana Supreme Court favorably cited and arguably partly relied upon the then draft form comments of the UMA in discussing confidentially in mediation in Vernon v. Acton 732 N.E.2nd 805 (Ind.2000).

Conclusion

Indiana counsel should feel reasonably comfortable that all pre-session communications made while, or for the purpose of considering, initiating or conducting a mediation are covered by the confidentiality provisions of the ADR Rules.

Best practice, however, would be for the parties to so specifically provide in their mediation agreement. This is especially important in pre-suit matters as such cases are only covered by the ADR Rules if the parties specifically so indicate. (ADR Rule 1.4 and ADR Rule 8.)•
 

ADVERTISEMENT

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT