A recent decision by the Indiana Court of Appeals shows the uneasy balance between the rules of confidentiality in an ADR process, and the rules of evidence in a court trial. In the family law case Horner v. Carter, the Indiana court has interpreted its state rules of ADR and Evidence so that clients may introduce evidence from confidential ADR sessions for a much broader range of reasons than the court had previously allowed. While the case is limited to Indiana, and currently under appeal to the Indiana Supreme Court, other ADR professionals may wish to tune in for two reasons. First, other states beyond Indiana may follow similar rules. Also, the case is an interesting example of the uneasy balance that can exist between the protection and privilege of ADR, and how that veil may be pierced unexpectedly in a court proceeding. (more…)
Archive for the ‘Court Opinions’ Category
Indiana Court Pierces Mediation Confidentiality For Possible Error
Just Court ADR, December 4th, 2012Delaware’s Chancery Court Arbitration Procedure Ruled Unconstitutional
Jennifer Shack, September 4th, 2012Last year, the Delaware Coalition for Open Government sued Delaware’s Chancery Court judges for operating a private arbitration system. Empowered by legislation passed in 2009, the judges were acting as arbitrators in business disputes, which, the Coalition argued, effectively made court proceedings confidential. According to the Coalition, this violated the presumptive right to access to judicial proceedings and documents, as guaranteed by the First Amendment of the Constitution.
Judge Mary McLaughlin from the Eastern District of Pennsylvania agrees. In a 26-page opinion, she rules that the arbitrations are sufficiently like a trial to be covered by the right to access presumption in the First Amendment. In coming to this conclusion, she argues that unlike arbitrators, who are private actors selected by the parties, judges are appointed to public service and therefore must act in the public interest.
For more analysis of the opinion, see Delaware Litigation and Steven Davidoff’s post in The New York Times.
Foreclosure Mediation Upheld against Constitutional Challenge
Just Court ADR, August 23rd, 2012For the second time in as many years, a foreclosure mediation program has faced a constitutional challenge. This time, the 153,000-person city of Springfield, Massachusetts, will be allowed to move forward with a foreclosure mediation program for residents.
The first was a constitutional challenge from Wells Fargo against the Nevada Supreme Court Foreclosure Mediation Program. Wells Fargo claims the mediation program itself violates the due process clause. More specifically, Wells Fargo claims a provision that allows sanctions for non-compliance, violated the U.S. constitution. Nevada’s mediation program allows judges to issue sanctions if the lender does not participate in good faith. Sanctions may include an ordered write-down of the mortgage. Wells Fargo says this violates the contracts clause and the takings clause by interfering with a contract provision and appropriating private real and personal property for public use without compensation. The court (more…)
Massachusetts Supreme Court Rules Mediation Constitutes the Practice of Law in Limited Circumstances
Jennifer Shack, June 21st, 2012Last week, the Massachusetts Supreme Judicial Court ruled that an attorney who has resigned from the law as a disciplinary sanction, or has been disbarred or suspended, may not be able to mediate because mediation may constitute legal work that would violate the bar’s discipline.
The ruling states that one of the factors to be considered in deciding whether a disciplined attorney is undertaking legal work is “whether the work as performed by the lawyer invokes the lawyer’s professional judgment in applying legal principles to address the individual needs of clients.” (more…)
