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In Case You Missed It: Court finds mediation not so confidential
Posted in Estate Planning

In case you missed it, Bingham Greenebaum Doll LLP partner Michael Kohlhaas recently shared his opinions on the Dennis Jack Horner v. Marcia (Horner) Carter case that was decided earlier this year. The ruling of this case may challenge what is generally held to be true about confidentiality in mediation.  Attorneys and mediators practice under the assumption that what is said in mediation stays in mediation; however, in the Horner case the court more narrowly construed the Alternative Dispute Resolution Rule 2.11 than in previous cases. In this particular case, the husband claimed that a mistake was made when drafting a mediated settlement divorce agreement and that the trial court made an error of excluding extrinsic evidence of the mistake. The COA agreed that the trial court indeed erred due to the fact that the husband intended to offer the mediation communications as evidence other than prohibited by the Alternative Dispute Resolution Rule 2.11. Mediation has become common and strongly suggested over a trial, the confidentiality aspect influences individuals to take more extreme measures to compromise. This ruling could open new doors and have lasting consequences for the protected confidentiality of mediations. Kohlhaas sees the decision as perhaps approaching the question of how can the court address possible mistakes because of miscommunication. He stated this about the future of mediation, “I think for attorneys going into mediation with their clients, it’s going to cause them to be more thoughtful about how they communicate, what they say to the mediator or allow their client to say to the mediator.”

Click here to read the full article on The Indiana Lawyer website

  • Partner

    Mike is a partner in Bingham Greenebaum Doll LLP’s Estate Planning Department. The Estate Planning Department seamlessly coordinates and executes a wide array of legal services that cater to the unique needs of high ...

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