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Supreme Court affirms what is said in mediation, stays in mediation

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A husband will not be able to offer as evidence comments made during a mediated settlement conference with his ex-wife, the Indiana Supreme Court has affirmed.  

In the matter of Dennis Jack Horner v. Marcia (Horner) Carter, No. 34S02-1210-DR-582, the Indiana Supreme Court rebuked the Indiana Court of Appeals conclusion that the confidentiality of mediation can be broken.  

Dennis Horner had wanted to provide testimony of what he said at the mediation as extrinsic evidence that a mistake had been made in the final settlement agreement. The trial court excluded the discussions. While the Indiana Court of Appeals affirmed the denial of relief, it ruled the trial court’s exclusion of the husband’s testimony was in error.

The COA’s findings surprised attorneys and mediators who noted caselaw supports the practice that everything said in mediation is confidential.

The Supreme Court affirmed the judgment of the trial court.

In a footnote, the Supreme Court noted the COA based its decision on a different approach presented in the Uniform Mediation Act drafted by the National Conference of Commissioners on Uniform State Laws. UMA would permit disclosure and discovery of conduct and statements made during mediation in certain circumstances.

However, the Supreme Court pointed out Indiana has not adopted the UMA rules. Instead, Indiana adheres to the Alternative Dispute Resolution Rule 2.11 which holds that 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 or invalidity of the claim or its amount.

“The Court of Appeals concluded that the husband’s statements during the mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement,” Chief Justice Brent Dickson wrote for the court. “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 benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue.”



 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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