Mediation confidentiality; ADR rules review coming

March 27, 2013
Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Commentary

By Andrea Ciobanu

ciobanu Ciobanu

When the Horner v. Carter appellate decision was published, many were astonished at the thought that mediation would not be confidential. To support their position, the Indiana Court of Appeals cited to the Uniform Mediation Act which permits disclosure in certain, limited circumstances. The problem with that cite is that only 11 states have adopted the UMA, and Indiana is not one of them. Furthermore, the UMA has additional procedural safeguards in place in the limited circumstances when statements made during the course of mediation could later be divulged.

In reaction to that concern, the Alternative Dispute Resolution Section of the Indiana State Bar Association and the Indiana Association of Mediators joined forces and authored a joint amicus brief that requested transfer to clarify this issue. Happily, transfer was granted, and the Indiana Supreme Court has upheld the sanctity of confidentiality in mediations.

In our oral argument, the amici requested that the Indiana Supreme Court issue a clear opinion in which the sanctity of ADR Rule 2.11 is upheld and that there are no exceptions to the confidentiality of mediations as set forth in our current rules. The Indiana Supreme Court questioned the amici during oral argument as to why this was so important when we argued the language was “unnecessary dicta” in our amicus brief. The amici responded that they did not want any confusion with the appellate decision since the opinion contained language that would lend itself to opening the door for piercing the confidentiality of mediations whether it was deemed dicta or not. The amici further requested an opinion containing clear language upholding the confidentiality of mediations so that the appellate language was not adopted in the Indiana Supreme Court’s opinion.

The Indiana Supreme Court did just so. Chief Justice Brent Dickson’s opinion stated, “In Vernon v. Acton, we held that the mediation confidentiality provisions of our ADR Rules ‘extend to and include oral settlement agreements undertaken or reached in mediation. Until reduced to writing and signed by the parties, mediation settlement agreements must be considered as compromise settlement negotiations . . .’” 732 N.E. 2d 805, 810 (Ind. 2000). The opinion further stated, “Evidence of conduct or statements made in compromise negotiations or mediation is not admissible except when offered for a purpose other than ‘to prove liability for invalidity of the claim or its amount.’” A.D.R. 2.11 (incorporating Evid. R. 408); see also Gast v. Hall, 858 N.E. 2d 154, 161 (Ind. Ct. App. 2006), trans. denied.

The Indiana Supreme Court disagreed with the Court of Appeals that the “husband’s statements made during the course of mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement.” The Supreme Court held that “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 Indiana Supreme Court further concluded that the “benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue.”

The Indiana Supreme Court reiterated in its opinion that Indiana has not adopted the UMA. They also acknowledged that the two amici organizations have further worked to create a task force to review the rules for Alternative Dispute Resolution (now formally recognized by the court). The Indiana ADR rules have not been thoroughly reviewed for over 20 years. It will be the goal of the task force to review all the Alternative Dispute Resolution Rules, not just ADR 2.11, and determine where any modifications may be necessary.

The ADR Task Force had its first meeting on March 26, 2013. Judge David Avery of Allen Superior Court is chair of the task force. Other voting members include: Amy Applegate of Bloomington, Judge Elaine Brown of the Indiana Court of Appeals, Patrick Brown of Zionsville, Stephen Cohen of Munster, Andrea Ciobanu of Indianapolis, Magistrate Nanette Raduenz of Lake Superior Court 3, Steven Spence of Indianapolis, and Kim Van Valer of Franklin. Additional liaisons include Judge L. Mark Bailey of the Indiana Court of Appeals, Rebecca Billick of Bloomington, Judge Mark Loyd of Johnson Circuit Court, Julia Orzeske of the Indiana Commission for Continuing Legal Education, and Ann Thrasher of Zionsville.

As such, stay tuned for the review of the ADR rules! Also, please feel free to contact any member of the task force if you have any issues that should be considered during this rules review.

Additionally, there will be a roundtable discussion at the Indiana State Bar Association’s Solo and Small Firm Conference June 6-8, 2013, in French Lick, Ind. It will be lead by Pat Brown, immediate past chair of the ISBA ADR Section, and Mark Loyd, chair of the ADR Committee of the Indiana Judicial Conference, and will gather additional insights of potential necessary modifications or other important issues pertaining to our ADR rules. This is truly a group effort and we thank you for your support!•


Andrea Ciobanu is the managing partner at Ciobanu Law, PC. Andrea practices in civil rights and litigation, education law, ADA Compliance, family law and appellate practice. She is a civil, domestic and elder mediator. She currently serves on the IAM board of directors and is the vice chair of the Indiana State Bar Association’s ADR Section. You may contact Andrea at: The opinions expressed are those of the author.


  • c
    We are enquiring for an experience attorney to handle a breach of contract. negotiation or a lawsuit. Anders Klinton Supply Management Mölnlycke Health Care Box 13080 SE-40252 Gothenburg, Sweden Gamlestadsvägen 3C

Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.