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Van Winkle: Should Indiana adopt Uniform Mediation Act?

John R. Van Winkle
October 26, 2011
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The Uniform Mediation Act was adopted by the National Conference of Commissioners on Uniform State Laws and recommended for enactment by states in August of 2001. The UMA, initiated by the American Bar Association’s then newly formed Section of Dispute Resolution, has been adopted by 11 states and the District of Columbia. Indiana’s neighboring states of Illinois and Ohio have enacted the UMA, and the act has been introduced in 2011 in Massachusetts and New York. The touchstone of the UMA is a privilege to protect mediation confidentiality and, although Indiana’s ADR Rule 2 governing mediation provides for confidentiality and mentions privilege, it is not as clear, specific and broad as the UMA.

The core of the UMA: Is a mediation ‘privileged’?

vanwinkle-john-mug.jpg Van Winkle

The UMA was an unusual collaborative effort between drafting committees from the ABA’s Section of Dispute Resolution and the Uniform Law Commissioners. These committees decided that the most effective manner of promoting candor and confidence in the mediation process was to center the confidentiality concerns in the form of a privilege.

“The Drafters considered several other approaches to mediation confidentiality – including a categorical exclusion for mediation communication, the extension of evidentiary settlement discussion rules to mediation, and mediation incompetency.” – Official Comment 2 to Section 4 of the UMA.

In contrast, the Indiana rule simply states that mediations are to be considered as settlement negotiations and covered by the evidentiary exclusionary provisions of Rule of Evidence 408. (Ind ADR Rule 2.11) That rule also provides that any matter discussed during the mediation shall be considered “confidential and privileged in nature.” The Indiana rule somewhat mixes the concepts of confidentiality and privilege and does not define the scope of the “mediation.”

The UMA’s focus on privilege simplifies and strengthens the confidentiality of mediation by creating a privilege for mediators and participants that allows them to refuse to disclose a “mediation communication” in any discovery or evidentiary proceedings covered by the act. An important component of the act is the broadness of the definition of a “mediation communication.”

UMA extends privilege protection

One of the most important aspects of the UMA is that it extends privilege protection to any “statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, or participating in, initiating, continuing or reconvening a mediation or retaining a mediator.” (UMA, Section 2(2))

Many mediations of complex and multi-party disputes not only often extend over multiple sessions, they also commonly involve numerous pre-session conference calls and planning sessions, and the provisions of the UMA clearly extend privilege coverage to these activities. Although it can be argued that Indiana’s rule also so provides, it is not clearly stated.

The definition of “mediation communication” only extends to non-verbal conduct which is intended to be an assertion. The Indiana Court of Appeals, in Bridges v. Metromedia Steakhouse Company, 807 N.E2d 162, (Ind. App.2004), found similarly in holding that a witness could testify as to observations made during a mediation as to the condition of the plaintiff’s arm.

Although the Indiana court in Bridges reached the same conclusion that would have resulted under the UMA, its analysis was focused on Evidence Rule 408 with a reference to the “general rule that matters discussed in mediation are confidential and privileged,” again combining in the analysis both confidentiality under 408 and privilege but without a clear indication of how the privilege applies.

Waiver and preclusion of the privilege

The drafters of the UMA decided that to have an effective mediation privilege, there needed to be a “blocking function.” (Official Comment 4, Sect. 4(b)) Under Section 4, a party may not only refuse to disclose a mediation communication, he or she may also prevent any other party from disclosing such a communication. Mediators and non-party participants may also refuse to disclose mediation communications and may block others from doing so also. All mediators and parties must agree in a record or orally in a proceeding to waive the privilege and a waiver can not be made by “conduct.” (UMA, Section 4)

Conclusion

As indicated above, although Indiana’s mediation rule both specifically applies Evidence Rule 408 and states that matters in mediation are “confidential and privileged,” it does not specifically delineate the scope of mediation nor does it explain the interplay and relationship of the concepts of confidentiality under 408 and privilege.

The incorporation of all or parts of the UMA into the Indiana ADR Rule 2 covering mediation would bring clarity to the scope and extent of confidentiality in mediation and, by using the same privilege focus, would simplify any analysis.•

__________

John R. Van Winkle chaired the American Bar Association’s Section of Dispute Resolution and has been a full-time professional mediator and arbitrator since 1994. He is a founding member of Van Winkle Baten Dispute Resolution. The opinions expressed in this column are the author’s.
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. 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)

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