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.
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.
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.
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.
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?”
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.
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.•