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Difficulties in Proving Oral Agreement Because of Mediation Confidentiality

VERNON v. ACTON, No. 49S02-9809-CV-488 (Ind., 6/30/00): The best practice when a dispute resolves in mediation is to commit the parties’ agreement to writing at the mediation.

Under Indiana Rules for Alternative Dispute Resolution, which the parties applied to the underlying mediation in this case, an oral settlement agreement in mediation will hereafter be viewed as part of the mediation process and, therefore, subject to applicable confidentiality provisions. Those provisions prohibit mediators from disclosing any matter discussed during the mediation and makes inadmissible evidence of conduct or statements made in the course of mediation.

Indiana’s Supreme Court reaches this conclusion, overruling prior precedent and reversing the decision below, in consonance with developments relating to revision of the Uniform Mediation Act. According to the Court, the March 2000 discussion draft under consideration by the National Conference of Commissioners on Uniform State Laws “provides that ‘a record of an agreement between two or more disputants’ shall not be protected by privilege or prohibition against disclosure.” No such exception will apply to oral agreements, if the proposal endures.

Moreover, “the majority of courts and statutes limit the confidentiality exception to signed written agreements….” While excluding evidence on confidentiality grounds will make enforceability of a disputed oral agreement very difficult, “[r]equiring written agreements, signed by the parties, is more likely to maintain mediation as a viable avenue for clear and enduring dispute resolution rather than one leading to further uncertainty and conflict.”

Accordingly, the court below erred in allowing a mediator to testify about the existence of an oral settlement agreement reached in mediation. (SAC Ref. No. 00-28-003)

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