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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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