A TTORNEY FOR A PPELLANT A TTORNEY FOR A PPELLEE A TTORNEY FOR

David W. Stone IV Brent R. Dechert A MIC I C URIAE Stone Law Office & Legal Research Kokomo, Indiana In diana State Bar Assoc. Anderson, Indiana Alternative Dispute

Resolutio n Section and

Indiana Assoc. of

Mediators

Andrea L. Ciobanu

Ciobanu Law P.C. Indianapolis, Indiana

____________________________________________________________________________ 

# In the 

# Indiana Supreme C ourt

_________________________________

No. 34S02

- 1210

- DR

- 582

D ENNIS J ACK H ORNER

, Appellant (Petitioner)

,

v.

M ARCIA (H ORNER ) C ARTER

, Appellee (Respondent)

.

_________________________________

Appeal from the Howard Circuit Court , No. 34C01

- 98 03

- DR

- 168

The Honorable Lynn Murray

, Judge

_________________________________

On Transfer from the Indiana Court o f Appeals, No. 34A02

- 1111

- DR

- 1029

_________________________________

February 12, 2013

Dickson, Chief J ustice.

When t he parties ' marriage was dissolved in 2 005, the trial court approved a se t tlement

agreement reached by the parties following mediation. Appellant's App'x at 19. In 2011, t he

husband initiat ed the present proceeding, seeking in part " to modify the maintenance provision in

the Settlement Agreement," id

. at 27, in order to terminate his liability for monthly housing pa yments to the wife after her remarriage. At the evidentiary hearing the trial court excluded from

evidence the husband’s testimony regarding statements he claimed to have made to the m e diator2

during the mediation process, and thereafter denied the husband’s request for modification of his

monthly housing payment oblig a tion. The Court of Appeals affirmed the deni al of relief, but

opined that the trial court’s exclu sion of the husband’s testimony was in error

, albeit har m less

error. Horner v. Carter , 969 N.E.2d 111 , 118 (Ind. Ct. App. 2012). We granted transfer thereby

vacating the Court of Appeals opinion

, except for those portions that are summarily affirmed

here in . Ind. Appellate Rule 58 (A)(2)

.

1. Exclusion of Husband's S tatements to Mediator D uring Mediation

.

Indiana policy strongly favors the confidentiality of all matters that occur during medi ation.

Alternative Dispute Resolution Rule 2.11 Confident iality

Mediation shall be regarded as settlement negotiations as governed by Ind. Ev idence Rule 408. For purposes of reference, Evid. R. 408 provides as follows:

Rule 408. Compromise and Offers to Compromise Evidence of (1) furnishing or offering or promising to furnish, or (2) a ccepting or offering or promising to accept a valuable consideration in compr omising or attempting to compromise a claim, which was disputed as to either v alidity or amount, is not admissible to prove liability for or invalid ity of the claim or its amount. Evidence of conduct or statements made in compromise negoti ations is l i kewise not admissible. T his rule does not require exclusion when the e vidence is offered for another purpose, such as proving bias or prejudice of a wi tness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass a lternative di s

pute resolution. Mediation sessions shall be closed to all persons other than the part ies of record,

their l e gal representatives, and other invited persons. Mediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the pa rties

, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators.

Ind. A lternative Dispute Resolution R ule 2.11.

In Vernon v. Acton

, we held that the mediation confidential i ty provisions of our ADR

Rules "extend to and include oral settlement agreements undertaken or reached in mediation.

Until reduced to writing and signed by the parties, mediation settlement ag reements must be co nsidered as compromise settlement negotiations

. . . ." 732 N.E.2d 805, 810 (Ind. 2000 ). Ev i-3

dence of conduct or statements made in compromise negotiations or mediation is not admissible

except when offered for a purpose other than "to prove liability for or invalidity of the claim or

its amount." A

. D

. R

. 2.11 (incorporating Evid. R. 408) ; see also Gast v. Hall , 858 N.E.2d 154,

161 (Ind. Ct. App. 2006)

, trans

. denied . The admissibility provided for mediation evidence "o ffered for anothe r purpose" pertains to the use of such evidence only in collateral matters unrela ted to the dispute that is the su b ject of the mediation. See A.D.R. 2.11 (incorporating Evid. R.

408).

During the hearing on the husband's petition to modify the mediated s ettlement agre ement , the trial court refused to allow the husband to testify as to his statements to the mediator

during the mediation session. The husband sought admission of this evidence to avoid li a bility

under the agreed settlement on grounds that it reflect ed neither his intent

, nor his oral agreement

during the medi a tion.

The Court of Appeals concluded that the husband's statements during the mediation could

be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement. W e di sagree. Indiana judicial policy strongly urges the amicable resolution of disputes and thus e mbraces a robust policy of confidentiality of conduct and statements made during n e gotiation and

mediation. 1 The benefits of compromise settlement agreements outweigh the risks that such po licy may on occasion impede access to otherwise admissible evidence on an i s sue.

1 The decision of the Court of Appeals, which we have vacated, expressed approval of a different approach presented in the Uniform Mediation Act ("UMA") drafted by the National Conference of Co mmissioners on Uniform State Laws. For the purpose of preserving traditional contract defenses, the UMA would permit disclosure and discovery of conduct and statements during mediation if not otherwise avai lable, and subject to a cautious balancing to ascertain whether the need for such evidence substantially outweighs the interes t in protecting confidentiality. See Uniform Mediation Act § 6(b) ("There is no pri vilege under Se c tion 4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not ot h erwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confident i ality, and that the mediation communication is sought or offered in:

. . . except as otherwise p rovided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liabi l ity on a contract arising out of the mediation."). Indiana has not adopted the UMA, and we decline to fo l low its approach to mediation confidentialit y at this time. The Court acknowledges that efforts are presently u nderway by the Alternative Dispute Resolution Section of the Indiana State Bar Association and the Alte rnative Dispute Resolution Committee of the Judicial Conference of Indiana to review and possibly pr opose modifications to the Indiana Rules for Alternative Dispute Resol u tion.4

In the present case, the husband's purported oral statements made to the mediator during

mediation clearly fall within the ex press inadmissib ility of mediation evidence akin to the offe r

or accept ance of a compromise on a claim of disputed liability or validity

. A

. D

. R

. 2.11 ( incorp orating Evid

. R. 408 )

. Furthermore, applying Vernon

, the husband's testimony, seeking to esta blish and enforce an oral agreement allegedly reached in mediation, must likewise be treated as

confidential and in admissible . The trial court was correct to exclude the husband's mediation

statements from evidence on his petition to modify the parties ' se t tlement agreement.

2. Denial of H usband’s P etition to M odify A greement.

With respect to the husband’s petition to modify the Property Settlement Agreement's

provisions obligating him to make house payments, we summarily affirm that portion of the d ecision of the Cour t of the Appeals that affirms the trial court’s rejection of the hu s band’s claim.

Horner , 969 N.E.2d at 118

– 19 ; App . R. 58(A)(2)

.

Conclusion

The judgment of the trial court is affirmed.

Rucker, David, Massa, and Rush, JJ., concur.