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…)
Posts Tagged ‘confidentiality’
Indiana Court Pierces Mediation Confidentiality For Possible Error
Just Court ADR, December 4th, 2012The Silent Space: Mediation Confidentiality, the Right to Privacy, and the Mediator’s Role
Just Court ADR, July 12th, 2012In her recent article in The Ohio State Journal on Dispute Resolution (and in previous articles here), Susan Oberman discusses the tension between mediation’s promotion of confidentiality and the constitutional right to privacy. While the article examines extensively the history of privacy, confidentiality, and constitutional/state law, I want to point mediators and court mediation program administrators to an issue of particular relevance for their practice. (more…)
Part 3 of 3: Foreclosure Mediation Best Practices
Just Court ADR, March 14th, 2012MEDIATION SESSION ELEMENTS
Ensure Mediators are Well-Trained
Some programs, fearing they will not be able to attract people to mediate, lower the requirements for training mediators. Instead of the normal 40 hour mediation training, they may require only 12 hours of training with an additional training in foreclosure law, or only require that the mediator be an attorney. This lack of training jeopardizes the mediation process itself, as people may not have the tools after 12 hours of training to manage such a complicated discussion. Connecticut’s program boasts a high settlement rate, in part because (more…)
Groundbreaking Court Decision Requires Courts to Comply with Mediators
Just Court ADR, July 15th, 2011Housing advocates are lauding the Nevada Supreme Court’s trio of decisions, released Thursday, about Nevada’s foreclosure mediation program. However, under the surface of Pasillas, Redmon, and Leyva lurks factors that could cause upheaval (more…)
