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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

ADVERTISEMENT