ILNews

Special task force going word-by-word through ADR rules

September 25, 2013
Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Although the privacy of mediation has been affirmed by the Indiana Supreme Court, the possibility that confidential conversations could become public highlighted the need to clarify and possibly change the state’s rules for alternative dispute resolution.

Over time, questions and ambiguities can arise as the ADR rules are applied, explained Johnson Circuit Judge Mark Loyd. One particular area of concern surrounds the confidentiality of mediations.

Dickson Dickson

Loyd, who also serves as chair of the Alternative Dispute Resolution Committee for the Indiana Judicial Conference, joined with Zionsville attorney Patrick Brown, immediate past president of the Indiana State Bar Association’s Alternative Dispute Resolution Section, and formulated the idea for a task force to review the rules and make proposals for revisions.

The goal, both Loyd and Brown emphasized, is not to make wholesale revisions to the ADR rules but to tweak the provisions that need updating.

They approached Supreme Court Chief Justice Brent Dickson in the fall of 2012 with their idea. A few months later, the court established the Alternative Dispute Resolution Task Force.

A limited number on the committee are voting members, but many from the mediation community are being encouraged to provide their suggestions and ideas, Brown said.

“I think everybody is going to have the opportunity to have their input,” he said.

valer Van Valer

ADR in Indiana

The ADR rules in Indiana were adopted in 1991 and have become a model for courts and legislatures in other states.

Initially, the idea of mediating disputes rather than litigating them was rebuffed by the Indiana legal community. Several doubted individuals would pay for a mediator and a lawyer when they could get their disagreements heard by a judge for free.

Still, alternative dispute resolution gained acceptance and had success in part because of the rules, according to Dickson. The provisions governing mediation, arbitration and other forms of dispute resolution have allowed for maximum flexibility without micromanaging the process or mandating onerous reporting requirements.

Not surprising, when approached about the task force the chief justice was a little leery about fixing something he believed was not broken. He did not see any need for a complete overhaul of the rules that have worked so well.

The Supreme Court, he said, does not want to over structure the rule or make itself an excessive supervisor of the alternative dispute resolution process. However, he continued, the court is open to making reasonable, minor changes.

A former Johnson Superior judge and member of the ADR Task Force, Kim Van Valer was an early advocate of mediation, first getting trained in the process in 1992. Her time on the bench reinforced her belief in the benefits of cooperatively working through a dispute.

applegate Applegate

Mediation can reduce the number of cases on a court’s docket and allow judges to focus more on the decisions, like criminal sentencing, that have to be made by a court, said Van Valer, who retired from the bench in 2008 and now runs Van Valer Dispute Resolution in Franklin.

She remembered listening to cases as a judge and thinking the decision she was being called upon to render would have been better made by the parties involved. Van Valer said she only knew what she was told in court while the individuals involved knew more about the situation and the solution that was best for them.

Moreover, Van Valer echoed Dickson in maintaining the ADR rules help the parties reach an agreement that is in everyone’s best interest. The guidelines facilitate the mediation by not imposing strict requirements on the process so the individuals can make their own decisions and develop their own solutions.

Any proposals for change the task force makes will ultimately have to be approved by the Indiana Supreme Court. Loyd anticipated any suggestions would be opened for public comment.

Keeping quiet

Confidentiality is commonly viewed as essential to the alternative dispute resolution process. The people on opposite sides of the table have to be assured that what they say or propose in the discussions will not come back to bite them in court.

Mediation, Van Valer said, does not produce a lot of “super secret opinions that the public would go crazy over,” but keeping the conversations private makes people more comfortable. If the parties are worried about speaking freely, they may not arrive at the best solution or any solution to their dispute.

The case, Dennis Jack Horner v. Marcia (Horner) Carter, 34S02-1210-DR-582, rattled the mediation community and spurred the task force to give special attention to the issue of confidentiality.

Dennis Horner tried to include testimony from a mediation to support his petition to modify the settlement agreement with his ex-wife. On appeal, the Indiana Court of Appeals held his statement made during the mediation could be admitted in court.

The Supreme Court disagreed and upheld the privacy of alternative dispute resolution discussions. Dickson wrote the opinion, noting Indiana judicial policy “embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation.”

That the COA saw an exception to confidentiality alarmed the mediation community.

Amy Applegate, director of the Viola J. Taliaferro Family and Children Mediation Clinic at the Indiana University Maurer School of Law, is chair of the task force’s subcommittee on domestic relations. This group is examining confidentiality.

Echoing Loyd, Applegate noted for those who provide alternative dispute resolution services, a review can be helpful because sometimes things are not as clear in practice. In regards to privacy, her subcommittee is asking “what does confidentiality mean and what can mediators tell the participants about confidentiality?”

Spotting violence

loyd Loyd

Another area that Applegate’s group is looking at is domestic violence. Currently, Indiana ADR rules do not require mediators to screen for abuse among the participating parties. When the requirements were drafted more than 20 years ago, there was less focus on questions about mediation with people who had been abused or hurt through domestic violence, Applegate said. Many have since learned without this information, any agreement reached may be tainted.

“You can’t make a voluntary autonomous decision if you are scared for your life,” Applegate said.

Her subcommittee wants to include language in the ADR rules that mandates mediators be trained in screening and know the appropriate questions to ask to determine if the relationship has become violent.

Applegate emphasized the difference between being educated in issues of domestic violence and knowing how to screen for abuse.

As a general rule, many people do not identify themselves as victims in their own homes. This then requires the mediator to ask specific questions about the relationship and whether there has been any punching, slapping or intimidation. Domestic violence is not limited to violent conduct. It also includes the threat of injury or doing something horrible.

Knowing how to elicit this information can give the mediator a better understanding of the relationship between the parties, Applegate said. He or she will be able to make decisions about what mediation process to use or whether mediation is even appropriate.

Stepping back

Proposals dealing with confidentiality and domestic violence will probably be more than tweaks but, Brown said, making a larger adjustment is “absolutely justified.”

The task force and its subcommittees have been very diligent in their work, some reviewing the rules word-by-word. In October, the whole task force is scheduled to meet again.

Brown agreed the state’s ADR rules have served very well and credited the comprehensiveness and flexibility with making the mediation process successful.

The mission of the task force, he said, is to step back and see how those rules are working.•

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

  3. The story that you have shared is quite interesting and also the information is very helpful. Thanks for sharing the article. For more info: http://www.treasurecoastbailbonds.com/

  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

ADVERTISEMENT