Mediation is a process, starting before and extending beyond the traditional meeting or “session.” Neither the Indiana ADR Rules nor Indiana court decisions directly identify either the starting or ending point of the mediation process and, therefore, mediators and practitioners need to be aware that the provisions of the rules, including those providing for sanctions, immunity, enforceability and confidentiality beyond Evidence Rule 408, may not govern or apply to communications and document exchanges occurring after a mediation session.
When does a mediation start?
Although not specifically stated, the Indiana ADR Rules, read in their entirety, anticipate that mediation is a “process” consisting not only of the traditional mediation session but also including activities and communications proceeding the session. ADR Rule 1.3 defines mediation as “a process in which a neutral third person … acts to encourage and to assist in the resolution of a dispute … .” ADR Rule 2.1 likewise states that mediation under the rule is a confidential “process.” Practitioners and mediators have long been cognizant of the implications of the reality that the mediation process begins well in advance of the formal session. The ADR rules have multiple provisions addressing pre-session activities, including selection of cases for mediation, selection of the mediator, required pre-session advisements and provisions concerning confidential submissions. One critical aspect of pre-session activity, however, is not specifically addressed. It is common for counsel in connection with the selection of a mediator to have conversations with prospective mediators, which often touch on or include confidential issues and dynamics. More importantly, it is standard practice in Indiana and in most jurisdictions in mediations involving commercial and complex matters for mediators to have both joint and individual conferences with the attorneys (and often the parties) in advance of the mediation session. It is submitted that the expectation of both mediators and participants in Indiana is that those conversations are being conducted pursuant to and are protected by the ADR Rules, particularly the confidentiality, privilege and immunity provisions.
The Indiana ADR Rules, however, do not specifically refer to such pre-session conversations. The uncertainty inherent in the Indiana rules was specifically addressed and resolved by the drafters of the Uniform Mediation Act. Adopted by 12 states and the District of Columbia and routinely cited by courts in most jurisdictions, the UMA covers the issue of pre-session activities in the definition of “mediation communications.” UMA section 2(2) provides that the act covers statements “made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.”
The importance of clarity as to what pre-session activity is covered by particular rules was demonstrated by the California case of Cassel v. The Superior Court of Los Angeles County, 244 P. 3D 1080 (S. Ct. Ca 2011). In that case, a client brought a legal malpractice action against his attorney who had represented him in a mediation. The mediation resulted in a settlement, which the client later opposed but the trial court enforced. In his action against his lawyer, the client alleged the attorney pressured him into certain negotiation positions and, in the legal malpractice action, the client offered testimony about conversations with his attorney before the formal session in which mediation strategy was discussed. The Supreme Court of California held that the state’s mediation confidentiality provision extended to the pre-session conversations, and those conversations were therefore neither discoverable nor admissible, even for the purpose of proving a claim of legal malpractice. The mediation statute in California contains a provision similar to that in the UMA, stating the rules to be applicable to statements made “for the purpose of, in the course of, or pursuant to, a mediation.” Although the Indiana ADR Rules do not so provide, nor has Indiana adopted the UMA, it is reasonable to assume that Indiana courts addressing pre-session communications would nevertheless consider them covered by provisions of the ADR Rules. See, for example, Vernon v. Acton, 732 N.E.2d 805 (Ind. 2000), in which the Indiana Supreme Court cited comments to the then-draft of the UMA in support of an interpretation of the Indiana ADR Rules.
When does a mediation end?
While pre-session mediation activities are often found to be covered by applicable rules, a more difficult issue concerns what follow-up conversations and post-session activities are within the purview of the ADR Rules. In this regard, the UMA specifically deferred comment. The drafters, in the comments to UMA Section 2(2), stated: “Responding in part to public concerns about the complexity of earlier drafts, the Drafting Committee also elected to leave the question of when a mediation ends to the sound judgment of the courts to determine according to the facts and circumstances provided by individual cases.”
Courts in various jurisdictions have discussed factors to be considered in determining when post-session communications should be considered part of the mediation process and covered by the applicable ADR rules. See, i.e., “Mediation: Law, Policy & Practice, Sec. 8:27: Scope of Information Protected — Pre- and Post-Mediation Communications” (November 2021 update).
In one such case, Armstrong v. HRB Royalty, Inc., 2005 WL 3371087 (S.D. Ala. 2005), the federal court in Texas held that the statutory mediation privilege did not apply to a settlement proposal initially conveyed during a mediation session and then offered again seven weeks after that session. In discussing the factors to be considered in such cases, the court stated: “… (T)o invoke confidentiality as to post-conference communications … (one must show) … (1) that the communication bears close temporal proximity to the conference; (2) that the communication consists of efforts to formalize an agreement reached at the conference; or (3) that the communication involves additional negotiation as to which the mediator has some connection.”
A review of cases in other jurisdictions addressing this issue indicates that the single most important step practitioners can take to maximize the potential for post-session activities and communications to be covered by ADR rules is to simply ensure that all post communications refer to the specific case and mediation, state that the communication is a “confidential mediation communication,” and make sure that the mediator is included as an addressee on the email or letter.
These communications often occur even after a report is filed with the court indicating that a mediation session was held and no settlement was reached. Although there does not appear to be specific caselaw so stating, it is submitted that mediation communications may be covered by the ADR rules, even if occurring days or weeks after the mediation session and when counsel are engaged in general litigation activity, if such communications are specifically and uniformly so labeled. Again, a critical factor will be facts and circumstances demonstrating that the post-session communications and activities are continuations of the negotiations that occurred in the session and that the mediator is involved or “has some connection” to the activity.•
John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding of and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.