IBA: Pre-Mediation Communications

By John R. Van Winkle, Van Winkle Baten Dispute Resolution
 

Van Winkle

The mediation process for complex disputes has evolved over the past twenty years and now commonly involves numerous pre-session communications, exchanges of documents and multiple sessions, extending over weeks or even months. Many disputes require what amounts to a “mediation over a mediation”. Issues arise as to what extent these pre-session exchanges are protected by the confidentiality provisions of the Indiana ADR Rules.

Indiana’s ADR Rules Do Not Specifically Address These Issues

Indiana ADR Rule 2.11 provides generally that mediation is to be governed by Evidence Rule 408. Unlike some states, however, the rules do not define mediation communications nor clearly delineate when a mediation begins and ends. There are, however, some provisions which support a broader scope for the application of confidentiality. ADR Rule 1.3, for example, defines mediation as a “process” and Rule 2.1 states that mediation is a “confidential process.” If, therefore, the “process” is defined as broader than an individual session, courts could conclude the confidentiality rules apply to the broader process and not just the activities during the mediation session. Support for this broader consideration of “process” is found in ADR Rule 2.7(A). That rule provides that a party may terminate a “mediation” at any time “after two (2) sessions have been completed”, clearly implying that mediation encompasses more than just the day or days of the sessions. Further, both ADR Rule 2 and Rule 7 set forth requirements and disclosures that by their nature must be performed before or after a session.

The Uniform Mediation Act Specifically Protects Pre-Mediation Communications

In 2001, after thorough and detailed study, initiated in part by the ABA’s Section of Dispute Resolution, the National Conference of Commissioners on Uniform State Laws approved the Uniform Mediation Act (“UMA”), adopted to date by twelve states.

The UMA specifically protects communications that occur “during a mediation” but also protects as confidential any additional statements

“…which are made for the purposes of considering, conducting, participating in,

Initiating, continuing or reconvening a mediation or retaining a mediator.”

UMA Sec. 2.2

This definition is broad enough to cover all statements and exchanges made conducting a “mediation for a mediation” and makes clear that counsel’s conversation with potential mediators and pre-session conversations with the mediator are protected.

Since complex mediations often require numerous conversations and communications to plan, convene and arrange the actual mediation, it is important to be clear that such activity is protected. Because, however, complex mediation can extend over weeks and months, the drafters of the UMA considered the potential for abuse if lawyers attempt to bring pre-mediation or interim mediation communications under the confidentiality protection for the wrong reasons. The drafters suggested that the privilege and communication should be restricted to those that a “party would reasonably believe would be confidential.”

As to when a mediation “starts” and “ends” the UMA drafters elected to leave that issue to the discretion of courts on a case by case basis.

Rules in other states, and cases interpreting them, have adopted the UMA’s broader confidentiality scope. California’s statute, for example, provides as follows:

“’Mediation consultation’ means a communication between a person and a mediator for the purpose of initiating or considering, or reconvening a mediation or retaining a mediator”. Cal.Evid.Code 1115(c)

The California Supreme Court recently further defined and broadened communications made “for the purpose” of mediating to include pre mediation statements between an attorney and his own client. Casel v. The Superior Court of Los Angeles County, 244P.3d 1080 (Cal 2011).

Although, as mentioned, Indiana has not adopted the UMA, our ADR Rules are generally consistent with that Act’s approach and, more importantly, as early as 2000, the Indiana Supreme Court favorably cited and arguably partly relied upon the then draft form comments of the UMA in discussing confidentially in mediation in Vernon v. Acton 732 N.E.2nd 805 (Ind.2000).

Conclusion

Indiana counsel should feel reasonably comfortable that all pre-session communications made while, or for the purpose of considering, initiating or conducting a mediation are covered by the confidentiality provisions of the ADR Rules.

Best practice, however, would be for the parties to so specifically provide in their mediation agreement. This is especially important in pre-suit matters as such cases are only covered by the ADR Rules if the parties specifically so indicate. (ADR Rule 1.4 and ADR Rule 8.)•