The Indiana Supreme Court recently declared that the state’s judicial policy supports “robust confidentiality” in mediation. In doing so, the court vacated a Court of Appeals ruling that would have expanded the circumstances in which confidentiality could be broken to obtain evidence. The two rulings reflect a strong contrast in interpretations of ADR rules and judicial policy toward mediation.

As I discussed in an earlier post, the appellant wished to use evidence from his divorce mediation to show that certain settlement provisions were recorded in error. The trial court did not permit this, and the case went before the Court of Appeals of Indiana.

The appeals court ruled that confidential statements from mediation could be used as evidence under certain circumstances. Indiana rules for ADR and Evidence treat ADR as a type of compromise negotiation. Things said during a compromise negotiation can’t be used as evidence for certain purposes: to prove a party’s liability in court, or to prove that the amount owed is invalid. However, things said in a compromise negotiation, even during a confidential mediation, may be used as evidence in court when they are offered for another purpose. By defining the plaintiff’s request as the traditional contract defense of “amending a mistake” rather than the prohibited purpose, the Court of Appeals found the evidence should be allowed in.

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