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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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