CHAPTER 3.5. MEDIATION
IC 4-21.5-3.5
Chapter 3.5. Mediation
IC 4-21.5-3.5-1
Mediation guidelines; procedural rights; rules
Sec. 1. (a) Except as provided in subsections (b) and (c), the
mediation guidelines adopted by rule under this chapter must
supplement the procedural rights established by this article.
(b) An agency described in IC 4-21.5-2-4 that is exempt from
administrative orders and procedures required under IC 4-21.5 may
adopt rules consistent with this chapter for the use of mediation to
resolve proceedings.
(c) An agency may elect to use the mediation provisions of this
chapter for determinations described in IC 4-21.5-2-6 that are exempt
from the administrative orders and procedures required under
IC 4-21.5.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-2
Appropriateness of mediation; rules
Sec. 2. (a) For each type of administrative proceeding, the
ultimate authority shall determine whether mediation is an
appropriate means of alternative dispute resolution.
(b) For proceedings that an ultimate authority determines to be
appropriate for mediation, the agency may adopt rules under
IC 4-22-2 to implement this chapter. The rules, to the extent possible,
shall not be inconsistent with Rule 2 of the Indiana Supreme Court
Rules for Alternative Dispute Resolution.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-3
Agreement to mediate
Sec. 3. Before a proceeding is initiated, an agency and a person
who may be the subject of an agency action may agree to use
mediation to resolve a dispute.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-4
Immunity of mediator
Sec. 4. A mediator, co-mediator, or team mediator appointed and
acting under this chapter has immunity in the same manner and to the
same extent as a judge having jurisdiction in Indiana.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-5
Selection of proceeding for mediation; objections
Sec. 5. (a) If a proceeding is of a type that has been identified as
appropriate for alternative dispute resolution under section 2 of this
chapter, the administrative law judge assigned to the proceeding
may, on the administrative law judge's own motion or upon motion
of any party, select the proceeding for mediation.
(b) Not more than fifteen (15) days after an order of selection for
mediation, a party may object by filing a written objection specifying
the grounds. The administrative law judge shall promptly consider an
objection to mediation and any response to the objection and shall
reconsider whether the proceeding is appropriate for mediation.
(c) In considering an order for mediation under this section, the
administrative law judge shall consider:
(1) the willingness of the parties to mutually resolve their
dispute;
(2) the ability of the parties to participate in the mediation
process;
(3) the need for discovery and the extent to which it has been
conducted; and
(4) any other factors that affect the potential for fair resolution
of the dispute through the mediation process.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-6
Selection of mediator by agreement of parties
Sec. 6. (a) If a proceeding is conducted by mediation, the
administrative law judge assigned to the proceeding shall within
fifteen (15) days after the date of the order for mediation make
available to the parties, at no cost, a mediator who is qualified under
section 8 of this chapter, or the parties may elect to use, at their own
cost, an outside mediator who is:
(1) qualified under section 8 of this chapter; and
(2) approved by the administrative law judge assigned to the
proceeding.
(b) If a mediator is not selected by agreement or choice under
subsection (a), the administrative law judge assigned to the
proceeding shall designate three (3) mediators from the approved list
of mediators described in subsection 7(d) and allow fifteen (15) days
for alternate striking by each side. The party initiating the proceeding
shall strike first. The mediator remaining after the striking process is
the mediator.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-7
Application to mediate; list of approved mediators
Sec. 7. (a) A person, other than agency personnel, who wishes to
serve as a mediator under this chapter shall file an application with
the ultimate authority or its designee describing the type of
proceeding in which the person desires to serve as a mediator and
setting forth qualifications as required by section 8 of this chapter
and the rules adopted under this chapter.
(b) A mediator must reapply if required by the rules.
(c) The administrative law judge assigned to a proceeding may
allow mediation teams and co-mediators.
(d) The ultimate authority or its designee that uses mediation for
dispute resolution shall maintain a list of approved mediators and the
types of proceedings in which each mediator is authorized to serve.
A mediator may be removed from the approved list for good cause,
after a hearing.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-8
Qualifications of mediator; agreement of parties on mediator
Sec. 8. (a) Except as provided in subsection (b), a person who
applies to be a mediator under this chapter must be qualified as a
mediator under Rule 2.5 of the Indiana Supreme Court Rules for
Alternative Dispute Resolution.
(b) Subject to approval of the administrative law judge, the parties
may agree on any person to serve as a mediator.
As added by P.L.16-1996, SEC.1. Amended by P.L.114-2008, SEC.1.
IC 4-21.5-3.5-9
Guidelines for mediator selection if parties do not agree
Sec. 9. If rules are adopted under section 2 of this chapter, the
rules must include guidelines for selection of a mediator for the
ultimate authority when there is no appropriate mediator or listed
mediator available and the parties cannot agree on an unlisted
mediator.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-10
Choice not to serve as mediator
Sec. 10. A person selected to serve as a mediator under this
chapter may choose not to serve for any reason.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-11
Replacement of mediator
Sec. 11. At any time, a party to a proceeding may request that the
administrative law judge replace the mediator of the proceeding for
good cause.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-12
Effect if mediator chooses not to serve
Sec. 12. If a mediator chooses not to serve or the administrative
law judge decides to replace a mediator, the mediator selection
process described in this chapter shall be repeated.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-13
Mediator ineligibility
Sec. 13. A mediator may not be selected to mediate a proceeding
if the mediator:
(1) has an interest in the outcome of the proceeding;
(2) is related to any of the parties or attorneys in the proceeding;
or
(3) is employed by any of the parties or attorneys involved in
the proceeding, except that an employee of the agency involved
may serve as a mediator if the employee of the agency:
(A) has not participated in the investigation or prosecution
of the dispute; and
(B) does not otherwise have an interest in the outcome of the
proceeding.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-14
Mediation costs
Sec. 14. (a) If the parties to a proceeding elect to use an outside
mediator, the costs of mediation must be paid as agreed by the
parties. If there is no agreement of the parties, the administrative law
judge assigned to the proceeding shall determine the mediation costs,
if necessary, and equitably divide the mediation costs among the
parties.
(b) To make the determination required by subsection (a), the
administrative law judge shall consider the following:
(1) The complexity of the litigation.
(2) The skill levels needed to mediate the proceeding.
(3) The ability of a party to pay.
(c) Mediation costs must be paid not more than thirty (30) days
after the mediation is completed unless otherwise agreed among the
mediator and the parties.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-15
Continuance of proceedings
Sec. 15. If a proceeding is selected for mediation, the
administrative law judge assigned to the proceeding shall continue
the proceeding until the mediation is completed.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-16
Duties of mediator
Sec. 16. A mediator for a proceeding under this chapter shall:
(1) inform the parties of the anticipated cost of mediation;
(2) advise the parties that the mediator does not represent either
or both of the parties;
(3) define and describe the process of mediation to the parties;
(4) disclose the nature and extent of any relationships with the
parties and any personal, financial, or other interest that may
result in bias or a conflict of interest;
(5) advise each of the parties to consider independent legal
advice;
(6) disclose to the parties or their attorneys any factual
documentation revealed during the mediation if at the end of the
mediation process the disclosure is agreed to by both parties;
(7) inform the parties of the extent to which information
obtained from and about the participants through the mediation
process is not privileged and may be subject to disclosure;
(8) inform the parties that they may introduce the written
mediated agreement into evidence if the agreement is signed by
all parties to the dispute;
(9) advise the parties of the time, date, and location of the
mediation at least ten (10) days in advance, unless a shorter
period is agreed to by the parties; and
(10) advise the parties of all persons whose presence at the
mediation might facilitate settlement.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-17
Individuals present at mediation
Sec. 17. (a) The parties and their attorneys, if any, must be present
at any mediation session unless otherwise agreed. A mediator may
allow nonparties to the dispute to be present at a mediation session
if the parties agree.
(b) All parties, attorneys with settlement authority, representatives
with settlement authority, and necessary individuals must be present
at each mediation conference to facilitate settlement of a dispute,
unless excused by the administrative law judge.
(c) Mediation sessions are not open to the public.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-18
Confidential statements; nonpublic records
Sec. 18. (a) The attorney for a party to a proceeding may submit
to the mediator a confidential statement of the proceeding, not to
exceed ten (10) pages, before a mediation conference. The statement
submitted under this section must include the following:
(1) The legal and factual contentions of the party.
(2) The factors considered in arriving at a settlement posture.
(3) The settlement negotiations to date.
(b) A confidential statement under this section may be
supplemented by exhibits or evidence that must be made available to
the opposing party or the opposing party's counsel at least five (5)
days before the mediation conference.
(c) A confidential statement is privileged and confidential unless
an agreement by the parties to the contrary is provided to the
mediator.
(d) If the mediation process does not result in settlement, any
submitted confidential statement must be returned to the submitting
attorney or party.
(e) Notwithstanding IC 4-21.5-4-6, the following are not public
records or part of the agency record, gathered by the mediator in the
course of mediation, in a proceeding:
(1) A confidential statement.
(2) Exhibits.
(3) Evidence.
(4) Other information.
(5) Draft settlement documents.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-19
Mediator meetings with parties
Sec. 19. In the mediation process, the mediator may meet jointly
or separately with the parties and may express an evaluation of the
proceeding to one (1) or more parties or their representatives. This
evaluation may be expressed in the form of settlement ranges rather
than exact amounts. The mediator may share revealed settlement
authority with other parties or their representatives.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-20
Termination of mediation
Sec. 20. (a) As soon after mediation as practicable, the mediator
shall report to the administrative law judge that the mediation
process has been completed, terminated, or extended.
(b) The mediator shall terminate mediation whenever:
(1) the mediator believes that continuation of the process would
harm or prejudice one (1) or more of the parties; or
(2) the ability or willingness of any party to participate
meaningfully in mediation is lacking to the extent that a
reasonable agreement is unlikely.
(c) After at least two (2) mediation sessions have been completed,
any party may terminate mediation. The mediator may not state the
reason for termination except when the termination is due to conflict
of interest or bias on the part of the mediator, in which case another
mediator may be assigned to the proceeding by the administrative
law judge for the proceeding.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-21
Failure to reach agreement; requirements for agreement
Sec. 21. (a) If the parties do not reach an agreement on any matter
as a result of mediation, the mediator shall report the lack of an
agreement without comment or recommendation to the
administrative law judge assigned to the proceeding. With the
consent of the parties, the mediator's report may also identify any
pending motions or outstanding legal issues, discovery process, or
other action by any party that, if resolved or completed, would
facilitate the possibility of a settlement.
(b) An agreement as a result of mediation must be in writing and
signed by the parties. The agreement must be filed with the
administrative law judge assigned to the proceeding. If the agreement
is complete on all issues, it must be accompanied by a joint
stipulation of disposition. Upon approval of a joint stipulation of
disposition by the administrative law judge, it has the same force and
effect as an agreed order approved by an administrative law judge
from the agency involved.
(c) An approved joint stipulation of disposition under this chapter
is considered a contract between the parties.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-22
Ability to mediate subsequent disputes
Sec. 22. A person who has served as a mediator in a proceeding
may act as a mediator in subsequent disputes between the parties,
and the parties may provide for a review of the agreement with the
mediator on a periodic basis. However, the mediator shall decline to
act in any capacity, except as a mediator, unless the subsequent
association is clearly distinct from the mediation issues.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-23
Conflicts of interest
Sec. 23. A mediator is required to use an effective system to
identify potential conflict of interest at the time of appointment to a
proceeding as a mediator. The mediator may not subsequently act as
an investigator or make any recommendations regarding the mediated
proceeding. A person may not serve as an administrative law judge
in a subsequent hearing of a matter in which the person served as a
mediator.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-24
Rules of evidence do not apply
Sec. 24. With the exception of privileged communications, the
rules of evidence do not apply to mediation, but factual information
having a bearing on the question of damages should be supported by
documentary evidence whenever possible.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-25
Limitation of discovery
Sec. 25. Whenever possible, parties to a proceeding are
encouraged to limit discovery to the development of information
necessary to facilitate the mediation process. By agreement of the
parties, or as ordered by the administrative law judge, discovery may
be deferred during mediation.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-26
Mediation regarded as settlement negotiation
Sec. 26. (a) Mediation shall be regarded as a settlement
negotiation. Evidence of furnishing or offering or promising to
accept a valuable consideration in compromising or attempting to
compromise a claim that was disputed as to either validity or amount
is not admissible in a proceeding to prove liability for or invalidity
of the claim or its amount.
(b) Evidence of conduct or statements made in the course of
mediation is not admissible. However, this subsection does not
require the exclusion of evidence otherwise discoverable merely
because it is presented in the course of the mediation process. This
subsection does not require exclusion when the evidence is offered
for another purpose, such as bias or prejudice of a witness or
negating a contention of undue delay.
As added by P.L.16-1996, SEC.1.
IC 4-21.5-3.5-27
Confidential and privileged nature of mediation
Sec. 27. (a) A mediator is not subject to process requiring
disclosure of any matter discussed during the mediation. Matters
discussed during mediation are confidential and privileged.
(b) The confidentiality requirement of subsection (a) may not be
waived by the parties.
(c) An objection to the obtaining of testimony or physical
evidence from mediation may be made by any party or by the
mediator.
As added by P.L.16-1996, SEC.1.