Court finds mediation not so confidential
Partner Michael Kohlhaas was recently quoted in an article discussing the implications of a decision made that could shed new light on the confidentiality held in mediation.
The decision was made earlier this year and has challenged what normally holds true to mediation, that what is said in mediation stays in mediation. The decision came from Dennis Jack Horner v. Marcia (Horner) Carter and has raised the issue of how important confidentiality is in the alternative dispute resolution process. In this case, the husband argued a mistake was made in the drafting of a mediated settlement divorce agreement and that the trail court made the error of excluding extrinsic evidence of the mistake.
The COA agreed that the trial court indeed erred since the husband intended to offer the mediation communications as evidence for an alternative purpose other than those prohibited by the Alternative Dispute Resolution Rule 2.11. Previously, attorneys and mediators have worked under the assumption that everything said in mediation is confidential. In this case, the court more narrowly interpreted the Alternative Dispute Resolution Rule 2.11 than in previous rulings. The Horner case is set to go to the Indiana Supreme Court.
Excerpt from ‘Court finds mediation not so confidential’
“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,” Kohlhaas said