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

September 25, 2013
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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.•

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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