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), themediation guidelines adopted by rule under this chapter mustsupplement the procedural rights established by this article.
(b) An agency described in IC 4-21.5-2-4 that is exempt fromadministrative orders and procedures required under IC 4-21.5 mayadopt rules consistent with this chapter for the use of mediation toresolve proceedings.
(c) An agency may elect to use the mediation provisions of thischapter for determinations described in IC 4-21.5-2-6 that are exemptfrom the administrative orders and procedures required underIC 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, theultimate authority shall determine whether mediation is anappropriate means of alternative dispute resolution.
(b) For proceedings that an ultimate authority determines to beappropriate for mediation, the agency may adopt rules underIC 4-22-2 to implement this chapter. The rules, to the extent possible,shall not be inconsistent with Rule 2 of the Indiana Supreme CourtRules 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 personwho may be the subject of an agency action may agree to usemediation 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 andacting under this chapter has immunity in the same manner and to thesame 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 asappropriate for alternative dispute resolution under section 2 of thischapter, the administrative law judge assigned to the proceedingmay, 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 formediation, a party may object by filing a written objection specifyingthe grounds. The administrative law judge shall promptly consider anobjection to mediation and any response to the objection and shallreconsider whether the proceeding is appropriate for mediation.
(c) In considering an order for mediation under this section, theadministrative law judge shall consider:
(1) the willingness of the parties to mutually resolve theirdispute;
(2) the ability of the parties to participate in the mediationprocess;
(3) the need for discovery and the extent to which it has beenconducted; and
(4) any other factors that affect the potential for fair resolutionof 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, theadministrative law judge assigned to the proceeding shall withinfifteen (15) days after the date of the order for mediation makeavailable to the parties, at no cost, a mediator who is qualified undersection 8 of this chapter, or the parties may elect to use, at their owncost, an outside mediator who is:
(1) qualified under section 8 of this chapter; and
(2) approved by the administrative law judge assigned to theproceeding.
(b) If a mediator is not selected by agreement or choice undersubsection (a), the administrative law judge assigned to theproceeding shall designate three (3) mediators from the approved listof mediators described in subsection 7(d) and allow fifteen (15) daysfor alternate striking by each side. The party initiating the proceedingshall strike first. The mediator remaining after the striking process isthe 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 toserve as a mediator under this chapter shall file an application withthe ultimate authority or its designee describing the type ofproceeding in which the person desires to serve as a mediator andsetting forth qualifications as required by section 8 of this chapterand 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 mayallow 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 thetypes 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 whoapplies to be a mediator under this chapter must be qualified as amediator under Rule 2.5 of the Indiana Supreme Court Rules forAlternative Dispute Resolution.
(b) Subject to approval of the administrative law judge, the partiesmay 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, therules must include guidelines for selection of a mediator for theultimate authority when there is no appropriate mediator or listedmediator available and the parties cannot agree on an unlistedmediator.
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 thischapter 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 theadministrative law judge replace the mediator of the proceeding forgood 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 administrativelaw judge decides to replace a mediator, the mediator selectionprocess 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 proceedingif 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 inthe proceeding, except that an employee of the agency involvedmay serve as a mediator if the employee of the agency:
(A) has not participated in the investigation or prosecutionof the dispute; and
(B) does not otherwise have an interest in the outcome of theproceeding.
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 outsidemediator, the costs of mediation must be paid as agreed by theparties. If there is no agreement of the parties, the administrative lawjudge assigned to the proceeding shall determine the mediation costs,if necessary, and equitably divide the mediation costs among theparties.
(b) To make the determination required by subsection (a), theadministrative 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) daysafter the mediation is completed unless otherwise agreed among themediator 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, theadministrative law judge assigned to the proceeding shall continuethe 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 eitheror 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 theparties and any personal, financial, or other interest that mayresult in bias or a conflict of interest;
(5) advise each of the parties to consider independent legaladvice;
(6) disclose to the parties or their attorneys any factualdocumentation 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 informationobtained from and about the participants through the mediationprocess is not privileged and may be subject to disclosure;
(8) inform the parties that they may introduce the writtenmediated agreement into evidence if the agreement is signed byall parties to the dispute;
(9) advise the parties of the time, date, and location of themediation at least ten (10) days in advance, unless a shorterperiod is agreed to by the parties; and
(10) advise the parties of all persons whose presence at themediation 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 presentat any mediation session unless otherwise agreed. A mediator mayallow nonparties to the dispute to be present at a mediation sessionif the parties agree.
(b) All parties, attorneys with settlement authority, representativeswith settlement authority, and necessary individuals must be presentat 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 submitto the mediator a confidential statement of the proceeding, not toexceed ten (10) pages, before a mediation conference. The statementsubmitted 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 besupplemented by exhibits or evidence that must be made available tothe 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 unlessan agreement by the parties to the contrary is provided to themediator.
(d) If the mediation process does not result in settlement, anysubmitted confidential statement must be returned to the submittingattorney or party.
(e) Notwithstanding IC 4-21.5-4-6, the following are not publicrecords or part of the agency record, gathered by the mediator in thecourse 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 jointlyor separately with the parties and may express an evaluation of theproceeding to one (1) or more parties or their representatives. Thisevaluation may be expressed in the form of settlement ranges ratherthan exact amounts. The mediator may share revealed settlementauthority 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 mediatorshall report to the administrative law judge that the mediationprocess has been completed, terminated, or extended.
(b) The mediator shall terminate mediation whenever:
(1) the mediator believes that continuation of the process wouldharm or prejudice one (1) or more of the parties; or
(2) the ability or willingness of any party to participatemeaningfully in mediation is lacking to the extent that areasonable agreement is unlikely.
(c) After at least two (2) mediation sessions have been completed,any party may terminate mediation. The mediator may not state thereason for termination except when the termination is due to conflictof interest or bias on the part of the mediator, in which case anothermediator may be assigned to the proceeding by the administrativelaw 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 matteras a result of mediation, the mediator shall report the lack of anagreement without comment or recommendation to theadministrative law judge assigned to the proceeding. With theconsent of the parties, the mediator's report may also identify anypending motions or outstanding legal issues, discovery process, orother action by any party that, if resolved or completed, wouldfacilitate the possibility of a settlement.
(b) An agreement as a result of mediation must be in writing andsigned by the parties. The agreement must be filed with theadministrative law judge assigned to the proceeding. If the agreementis complete on all issues, it must be accompanied by a jointstipulation of disposition. Upon approval of a joint stipulation of
disposition by the administrative law judge, it has the same force andeffect as an agreed order approved by an administrative law judgefrom the agency involved.
(c) An approved joint stipulation of disposition under this chapteris 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 proceedingmay act as a mediator in subsequent disputes between the parties,and the parties may provide for a review of the agreement with themediator on a periodic basis. However, the mediator shall decline toact in any capacity, except as a mediator, unless the subsequentassociation 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 toidentify potential conflict of interest at the time of appointment to aproceeding as a mediator. The mediator may not subsequently act asan investigator or make any recommendations regarding the mediatedproceeding. A person may not serve as an administrative law judgein a subsequent hearing of a matter in which the person served as amediator.
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, therules of evidence do not apply to mediation, but factual informationhaving a bearing on the question of damages should be supported bydocumentary 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 areencouraged to limit discovery to the development of informationnecessary to facilitate the mediation process. By agreement of theparties, or as ordered by the administrative law judge, discovery maybe 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 settlementnegotiation. Evidence of furnishing or offering or promising toaccept a valuable consideration in compromising or attempting to
compromise a claim that was disputed as to either validity or amountis not admissible in a proceeding to prove liability for or invalidityof the claim or its amount.
(b) Evidence of conduct or statements made in the course ofmediation is not admissible. However, this subsection does notrequire the exclusion of evidence otherwise discoverable merelybecause it is presented in the course of the mediation process. Thissubsection does not require exclusion when the evidence is offeredfor another purpose, such as bias or prejudice of a witness ornegating 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 requiringdisclosure of any matter discussed during the mediation. Mattersdiscussed during mediation are confidential and privileged.
(b) The confidentiality requirement of subsection (a) may not bewaived by the parties.
(c) An objection to the obtaining of testimony or physicalevidence from mediation may be made by any party or by themediator.
As added by P.L.16-1996, SEC.1.