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IN THE

SUPREME COURT OF INDIANA

ORDER AMENDING RULES OF ALTERNATIVE DISPUTE RESOLUTION

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state, the following guidelines for pre-suit mediation are adopted as part of the Rules of Alternative Dispute Resolution:

GUIDELINES FOR PRE-SUIT MEDIATION

Guideline 8. Pre-suit Mediation

        Preamble. The voluntary resolution of disputes in advance of litigation is a laudatory goal and a favorable development. Parties embarking on this process may find useful the following voluntary guidelines which were developed by the Indiana State Bar Association.

        8.1. Initiation of the pre-suit mediation process. The mediation process is initiated by a request from any party to another. This may be accomplished with a simple letter. See Form A.

        8.2. Representation by counsel. For the mediation process to work, the mediator cannot give legal advice to an individual claimant and simultaneously serve in the conflicting role of an independent neutral. Accordingly, individual claimants shall be represented by their own lawyer. No request for pre-suit mediation shall be made to an unrepresented individual claimant. A claimant who does not have a lawyer may obtain help in finding one by contacting the local bar association's referral service.

        8.3. Selection of a mediator. The parties should select a mediator of their own choice and agree on the method of compensating the mediator. Usually, the mediator's fee will be shared equally by the parties.
        8.4. The pre-suit mediation agreement. The parties should enter into a written agreement in accordance with Form B. This agreement should, among other things, protect the confidentiality of the pre-suit mediation process as set forth in ADR Rule 2.12 and provide for immunity of mediators as set forth in ADR Rule 1.5.

        8.5. Scheduling the mediation. The parties and mediator should schedule the mediation promptly, recognizing that the value of pre-suit mediation depends on an expeditious resolution.

        8.6. Mediation submissions. Each side is encouraged to submit to the mediator a confidential statement of its case as outlined in ADR Rule 2.7(c).

        8.7. Good faith. The parties should participate in the mediation in good faith. Needed information should be shared so that each party can reasonably evaluate its respective position. The parties are not required to reach agreement.

        8.8. Settlement agreement. If an agreement to settle is reached, it should be reduced to writing promptly and a copy provided to all parties.

        8.9. Mediator's report. To facilitate the collection of data, the mediator should file a report with the ISBA in accordance with Form C. The report should be limited to whether the matter was resolved and the type of case involved. It should not identify the parties or disclose any other details about the dispute, the mediation process, or about the settlement agreement.

        8.10. Subsequent ADR measures. Unless otherwise agreed, nothing in the pre-suit mediation process should preclude any later litigation or alternative dispute resolution in the form of post-suit mediation, arbitration or other ADR method as provided in the Indiana Rules for Alternative Dispute Resolution.

        8.11. Statute of limitations. The parties are cautioned that pre-suit mediation does not toll any applicable statute of limitations. Nor does it serve as a substitute for, or constitute compliance with, any other procedural requirements for pursuing a claim such as the formal notice of a party's intent to make a claim required under Indiana's Tort Claims Act. Rather, pre-suit mediation is purely a voluntary process designed to effect early settlement.

Form A: Letter Requesting Pre-Suit Mediation


Date

Re: Claimant v. ABC Co.

Dear _____________________________________:

    Please accept this letter as a request for pre-suit mediation of the above-referenced matter in accordance with the guidelines suggested in the Indiana State Bar Association's Pre-Suit Mediation Program. A copy of the guidelines is enclosed for reference.

    If you agree to pre-suit mediation of this matter, please contact me so that we can select a mediator and enter into a pre-suit mediation agreement.

                            Very truly yours,

                            By _________________
                             XXXXXXXXXX, Esq.


    

Form B: Pre-Suit Mediation Agreement
The undersigned parties, in person and by counsel, agree to mediate their dispute, prior to the filing of litigation, pursuant to the following terms:

1. ________________________ will act as the mediator and will be compensated at the total hourly rate of $ ______________. Each party is responsible for paying one-half of the mediator's fees and expenses unless otherwise agreed by the parties prior to or during mediation.

2. The mediation will be conducted in accordance with the Pre-Suit Mediation Guidelines established by the Indiana State Bar Association.

3. Although the mediator is an attorney, the mediator does not represent either side and does not offer and will not give legal advice or legal counsel.

4. The mediator shall have immunity in the same manner and to the same extent as a judge in the state of Indiana. Any attempt to challenge this immunity in any proceeding shall entitle the mediator to a judgment against the party raising such challenge for the amount of reasonable attorney fees and court costs and other direct and indirect costs incurred by the mediator as a result of such challenge.

5. The mediation shall be regarded as settlement negotiations and shall be subject to the same confidentiality protections as provided in Indiana ADR Rule 2.12.

6. The parties, their counsel and the mediator agree that each has a privilege to refuse to testify and to prevent the other from testifying about any communication made during the mediation.

7. The mediation shall be conducted in accordance with the mediation procedure described by Indiana ADR Rule 2.7 except that in lieu of reporting to any court about the mediation, the mediator will report to the Indiana State Bar Association that a pre-suit mediation was held and that it did or did not result in a settlement, without further comment or recommendation.

8. If the pre-suit mediation does not result in a settlement, the parties may use mediation again after suit has been filed and, upon agreement of the parties, may use the same mediator.

9. Either party may terminate the mediation at any time by a letter to the mediator with a copy being sent to the other party.

10. The mediator may terminate the mediation at any time because of an impasse or if for any reason the mediator deems it improper or unproductive to continue. The mediator will not be required to disclose the reason for terminating the mediation but may do so, to the parties and their attorneys only, at the mediator's sole discretion.

11. The parties shall mediate in good faith but are not required to reach an agreement.
______________________________________    ____________________________________
Party                            Party
______________________________________    ____________________________________
Attorney                        Attorney

________________________________________________
Mediator

Form C: Pre-Suit Mediation Report

Indiana State Bar Association
Indiana Bar Center
230 East Ohio Street, 4th Fl.
Indianapolis, IN 46204-2199
Attn: Pre-Suit Mediation Committee

Pre-Suit Mediation Report

1. Date of Pre-Suit Mediation: ____________________    ______________________________
                                    Mediator
2. Subject of dispute, check one:    

___     Personal Injury
___    Property Damage
___     Commercial
___    Employment
___     Domestic Relations
___     Other, briefly describe

3. Settled: Yes or No (circle one)


These amendments shall be effective January 1, 1999.
    The Clerk of this Court is ORDERED to forward a copy of this order to the Clerk of each Circuit Court in the State of Indiana; Attorney General of Indiana; Legislative Services Agency and its Office of Code Revision; Administrator, Supreme Court of Indiana; Administrator, Indiana Court of Appeals; Administrator, Indiana Tax Court; Public Defender of Indiana; Indiana Supreme Court Disciplinary Commission; Indiana Supreme Court Commission for Continuing Legal Education; Indiana Board of Law Examiners; Indiana Judicial Center; Division of State Court Administration; the libraries of all law schools in the state; The Michie Company; and West Publishing Company.

    West Publishing Company is directed to publish this order in the advance sheets of this Court.
    The Clerks of the Circuit Courts are ORDERED to bring this order to the attention of all judges within their respective counties and to post this order for examination by the Bar and general public.
    DONE at Indianapolis, Indiana, this _____ day of December, 1998.
                            FOR THE COURT

                                                                             _____________________________
                            Acting Chief Justice of Indiana

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