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Actions May Speak Louder than Words...But in Mediation, They're Just as Confidential - Alternative Dispute Resolution News

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Alternative Dispute Resolution News


Posted on: Jun 17, 2014

Whether a party said it, did it or just thought it at mediation, it’s not coming into evidence. See this April 2014 appellate case addressing whether a party’s actions at mediation were then admissible at trial.

KL v. EH, 6 NE3d 1021 (COA, April 9, 2014)

Grandparent visitation case. At the first trial, the Court indicated that it wanted the parties to speak with a family counselor or therapist. In part, the Court stated,

I haven’t heard all the evidence. I would like for the two of you to speak with a family counselor or therapist that the two of you can mutually agree on, and feel comfortable that what you express to the counselor would be completely confidential. In other words, I’m viewing this as, in civil cases we have mediation where both parties go to mediation. What’s discussed at mediation stays at mediation. Nobody can bring that mediator back into court to testify as to what was discussed during the mediation. I think it would be helpful as what I’m considering to be somewhat of a family unit, the two of you, meet with a family counselor and be able to bare your concerns to that counselor without any fear of that being used in court, the counselor coming back and testifying. I would not permit it, I would not allow it. Anything that you would say during counseling would be completely confidential and I would hope would be helpful though in perhaps the two of you at least understanding each other’s concerns and positions and then seeing if the two of you can’t reach a mutual agreement.

Transcript at 48-49.

The court later appointed a counselor (Halladay). The parties failed to reach agreement with Halladay, and at the second trial, Mother wanted Halladay to testify. Mother’s attorney told the court Mother didn’t want Halladay to testify as to what was said at the session(s), Mother only wanted Halladay to testify about Grandfather’s actions. Specifically, that Grandfather walked out, terminated the counseling, and prevented further progress, thereby causing the ADR process to fail prematurely. (Incidentally, prior to trial, Halladay filed a letter with the Court, which upon Grandfather’s motion, the Court struck.) The Court ruled that Halladay would not be allowed to testify even as to Grandfather’s actions. The court reiterated that it sent the parties to a counselor in the form of a mediation and it wanted the parties to be free to discuss things without the fear of the counselor coming back into court and testifying.

Mother appealed, and one of the issues was whether the trial court abused its discretion in excluding Halladay’s testimony. Mother argued (in part) that even if the settlement proceedings were treated as mediation, subject to the Rules of Alternative Dispute Resolution, neither those rules nor the Rules of Evidence would require or justify excluding evidence of Grandfather’s behavior in walking out of the therapy sessions. Mother argued that the confidentiality rules focus on liability and are inappropriate and damaging where a child’s welfare is involved, and that Grandfather terminated all efforts at compromise at a time when a trained counselor believed they were likely to bear fruit. Mother also argued that any public policy served by keeping a party’s behavior in settlement discussions confidential must give way to the need to assess behavior and temperament of an adult who seeks to be put in charge of a child (i.e. have visitation). She argued that Grandfather’s failure to participate in the counseling was relevant to whether he put the child’s best interests above his own.

In the appellate opinion, the COA cited Indiana ADR Rule 1.2, Indiana ADR Rule 2.11, and Indiana Evidence Rule 408. It pointed out that the Indiana Supreme Court recently held that “Indiana policy strongly favors the confidentiality of all matters that occur during mediation.” Horner v. Carter, 981 N.E.2d 1210, 1211 (Ind. 2013), and, “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.” Id. at 1212. Since the trial court had stressed several times that it would not entertain any testimony by the counselor, and given that Indiana’s policy strongly favors confidentiality of all matters that occur during mediation, the COA wrote, “We cannot say that the trial court abused its discretion in excluding the testimony Mother wished to elicit from Halladay.”

By: Robin L. Kelly, Mitchell Law Group

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