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Mediation confidentiality; ADR rules review coming

March 27, 2013
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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: aciobanu@ciobanulaw.com. The opinions expressed are those of the author.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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