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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT