Rules for Alternative Dispute Resolution
These rules are adopted in order to bring some uniformity into alternative dispute resolution with the view that the interests of the parties can be preserved in settings other than the traditional judicial dispute resolution method. Mediation is the primary form of alternative dispute resolution adopted under these rules.
Rule 1.1. Recognized Alternative Dispute Resolution Methods
Alternative dispute resolution methods which are recognized include settlement negotiations, arbitration, mediation, conciliation, facilitation, mini-trials or mini-hearings, summary jury trials, private judges and judging, convening or conflict assessment, neutral evaluation and factfinding, multi-door case allocations, and negotiated rulemaking.
Rule 1.3. Alternative Dispute Resolution Methods Described
(A) Mediation. This is a process in which a neutral third person, called a mediator, acts to encourage and to assist in the resolution of a dispute between two (2) or more parties. This is an informal and nonadversarial process. The objective is to help the disputing parties reach a mutually acceptable agreement between or among themselves on all or any part of the issues in dispute. Decision-making authority rests with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives, and in other ways consistent with these activities.
(B) Arbitration. This is a process in which a neutral third person or a panel, called an arbitrator or an arbitration panel, considers the facts and arguments which are presented by the parties and renders a decision. The decision may be binding or nonbinding as provided in these rules.
(C) Mini-hearings. A mini-hearing is a settlement process in which each side presents a highly abbreviated summary of its case to senior officials who are authorized to settle the case. A neutral advisor may preside over the proceeding and give advisory opinions or rulings if invited to do so. Following the presentation, the officials seek a negotiated settlement of the dispute.
(D) Summary Jury Trials. This is an abbreviated trial with a jury in which the litigants present their evidence in an expedited fashion. The litigants and the jury are guided by a presiding official who sits as if a judge. After an advisory verdict from the jury, the presiding official may assist the litigants in a negotiated settlement of their controversy.
(E) Private Judges. This is a process in which litigants employ a private judge, who might be a former judge or another similarly trained person, to resolve a pending lawsuit. The parties are responsible for all expenses involved in these matters, and they may agree upon their allocation.
Rule 1.4. Application of Alternative Dispute Resolution
Unless limited by specific provisions, or unless there are other specific statutory procedures which are applicable, these rules shall apply in all civil and domestic relations litigation filed in all Circuit, Superior, County, Municipal, and Probate Courts in the state. These rules shall not apply to the following cases and proceedings:
(B) actions to enforce infractions or ordinance violations;
(D) forfeitures of seized properties;
(E) habeas corpus or other extraordinary writs;
(F) such other matters as may be specified by order of the Indiana Supreme Court;
(G) matters in which there is very great public interest, and which must receive an immediate decision in the trial and appellate courts; and
(H) small claims proceedings.
Rule 1.5. Immunity for Persons Acting Under This Rule
A mediator; an arbitrator; a neutral person conducting, directing, or assisting in a mini-hearing; a presiding person conducting a summary jury trial and the members of its advisory jury; and a private judge, appointed and acting under these rules, shall each have immunity in the same manner and to the same extent as a judge in the State of Indiana.
Rule 1.6. Discretion in Use of Rules
Except as herein provided, a presiding judge may order any civil or domestic relations proceeding or selected issues in such proceedings referred to mediation or a mini-hearing. The selection criteria which should be used by the court are defined under these rules. Arbitration and a summary jury trial may be ordered only upon the agreement of the parties as consistent with provisions in these rules which address each method.
Rule 1.7. Jurisdiction of Proceeding
At all times during the course of any alternative dispute resolution proceeding, the case remains within the jurisdiction of the court which referred the litigation to the process. For good cause shown and upon hearing on this issue, the court at any time may terminate the alternative dispute resolution process and return the litigation to the regular court docket.
Rule 1.8. Recordkeeping
When a case has been referred for alternative dispute resolution, the Clerk of the court shall note the referral and subsequent entries of record in the Chronological Case Summary under the case number initially assigned. The case file maintained under the case number initially assigned shall serve as the repository for papers and other materials submitted for consideration during the alternative dispute resolution process. The court shall report on the Quarterly Case Status Report the number of cases resolved through alternative dispute resolution processes.
Rule 1.9. Service of Papers and Orders
The parties shall comply with Trial Rule 5 of the Rules of Trial Procedure in serving papers and other pleadings on parties during the course of the alternative dispute resolution process. The Clerk of the Circuit Court shall serve all orders, notices, and rulings under the procedure set forth in Trial Rule 72(d).
Rule 1.10. Other Methods of Dispute Resolution
These rules shall not preclude a court from utilizing any other reasonable method or technique to resolve disputes.
RULE 2. MEDIATION
Rule 2.1. Purpose
Mediation under this section involves the confidential process by which a neutral mediator, selected by the parties or appointed by the court, assists the litigants in reaching a mutually acceptable agreement. The role of the mediator is to assist in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement as well as legitimate points of disagreement. Any agreement reached by the parties is to be based on the autonomous decisions of the parties and not the decisions of the mediator. It is anticipated that an agreement may not resolve all of the disputed issues, but the process can reduce points of contention. Parties and their representatives are required to mediate in good faith, but are not compelled to reach an agreement.
Rule 2.2. Case Selection/Objection
At any time fifteen (15) days or more after the period allowed for peremptory change of venue under Trial Rule 76(2) or (3) has expired, a court may on its own motion or upon motion of any party select a civil, or domestic relations case for mediation. Within fifteen (15) days after an order of selection for mediation, a party may object by filing a written objection specifying the grounds. The court shall promptly consider the objection and any response and determine whether the litigation should then be mediated or not. In this decision, the court shall consider the willingness of the parties to mutually resolve their dispute, the ability of the parties to participate in the mediation process, the need for discovery and the extent to which it has been conducted, any other factors which affect the potential for fair resolution of the dispute through the mediation process. If a case is ordered for mediation, the case shall remain on the court docket and the trial calendar.
Rule 2.3. Listing of Mediators
All persons who wish to serve as mediators under these rules, must file an application with the trial court enumerating the type of litigation in which they desire to serve and setting forth their qualifications as required by Rule 2.5. Mediators must reapply every five (5) years. Mediation teams, i.e. two (2) or more qualified professionals working as a unit, may be listed as one entity and jointly meet the educational and professional qualifications requirement. All courts shall maintain a listing of approved mediators and the type of case in which each mediator is authorized to serve. A mediator may be removed from the approved listing for good cause shown, upon hearing.
Rule 2.4. Selection of Mediators
The parties may, within fifteen (15) days of referral: (1) choose a mediator from the court's approved listing, (2) choose a mediator from the approved listing of another court within the state, or (3) agree upon a non-listed mediator, who must be approved by the trial court. In the event a mediator is not selected by agreement or choice, the court will designate three (3) mediators from court approved listings for alternate striking by each side. The side initiating the lawsuit will strike first. The mediator remaining after the striking process will be deemed the selected mediator. A person selected to serve as a mediator under this rule may choose not to serve for any reason. At any time, a party may request the court to replace the mediator for good cause shown. In the event a mediator chooses not to serve or the court decides to replace a mediator, the selection process will be repeated.
Rule 2.5. Qualifications of Mediators
(1) A mediator must not have an interest in the outcome of the litigation, must not be employed by any of the parties or attorneys involved in the litigation, or be related to any of the parties or attorneys in the litigation. A full-time judge may not act as a mediator.
(2) A mediator must have completed at least forty (40) hours of mediation training in courses certified as appropriate for mediation training by the Indiana Commission For Continuing Legal Education and have received a minimum of five (5) hours of mediation training during the two-year period prior to re-application. Provided, however, that during 1992 persons may serve as mediators who have completed thirty (30) hours of such training.
(B) Civil Cases: Educational Qualifications.
(1) In civil cases, a mediator must be an attorney in good standing with the Supreme Court of Indiana, unless the parties agree to a mediator who is not such an attorney and the court enters an order approving of such mediation.
(2) Subject to the approval by the court in which the case is pending, the parties may agree upon an attorney or person who is not an attorney as a mediator, and who does not meet the hours-of-training requirements of this rule.
(C) Domestic Relations Cases: Educational Qualifications.
(1) In domestic relations cases, a mediator must be either an attorney admitted to the practice of law in the state of Indiana, or a person who has a bachelor's degree from an accredited institution of higher learning. Subject to the approval of the court, the parties may agree upon a mediator who is not an attorney, or who does not hold a bachelor's degree from an accredited institution of higher learning, and who has not met the hours-of-training requirements in this rule.
(2) To the extent practicable, mediators must have knowledge of the Indiana judicial system, the procedures used in domestic relations cases, the resources in the community to which the parties can be referred for assistance, child development, clinical issues relating to children, the effects of dissolution of marriage on children, and family systems theory. Mediation teams may meet this requirement by combining their knowledge if they appear jointly on the court's approved mediation listing for domestic relations issues.
Rule 2.6. Mediation Costs
Absent an agreement by the parties, the court shall set an hourly rate for mediation and determine the division of such costs by the parties. The costs should be predicated on the complexity of the litigation, the skill levels needed to meditate the litigation, and the litigants' ability to pay. The mediation costs shall be paid within thirty (30) days after the close of mediation.
Rule 2.7. Mediation Procedure
(A) Advisement of Participants. The mediator 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 which could 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 a time, date, and location of the place for mediation at least ten (10) days in advance, unless a shorter time period is agreed by the parties;
(10) advise the parties of all persons whose presence at mediation might facilitate settlement; and
(11) in child related matters, ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children.
(B) Mediation Conferences.
(1) The parties and their attorneys shall be present at any mediation session unless otherwise agreed. At the discretion of the mediator, non-parties to the dispute may also be present.
(2) All parties, attorneys with settlement authority, representatives with settlement authority, and other necessary individuals shall be present at each mediation conference to facilitate settlement of a dispute unless excused by the court.
(3) A child involved in a Domestic Relations Proceeding, by agreement of the parties or by order of the court, may be interviewed by the mediator out of the presence of the parties or attorneys.
(4) Mediation sessions are not open to the public.
(C) Confidential Statement of Case. In civil litigation, the attorney for each side may submit to the mediator a confidential statement of the case, not to exceed ten (10) pages, prior to a mediation conference, which shall include:
(1) the legal and factual contentions of the respective parties as to both liability and damages; (2) the factors considered in arriving at the current settlement posture; and
(3) the status of the settlement negotiations to date.
This confidential statement may be supplemented by damage brochures, videos, and other exhibits or evidence which shall be made available to opposing counsel at least five (5) days prior to the mediation conference. The confidential statement of the case shall at all times be held privileged and confidential from other parties unless agreement to the contrary is provided to the mediator. In the mediation process, the mediator may meet jointly or separately with the parties and may express an evaluation of the case to one or more of the 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. If the mediation process does not result in settlement, any submitted confidential statement of the case shall be returned to the submitting attorney or party.
(D) Completion/Termination of Mediation. As soon thereafter as practicable, the mediator shall report to the court that the mediation process has been completed, terminated, or extended. The mediator shall terminate mediation whenever the mediator believes that continuation of the process would harm or prejudice one or more of the parties or the children or whenever the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely. At any time after two (2) sessions have been completed, any party may terminate mediation. The mediator shall 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 by the court.
(E) Report of Mediation: Agreement
(1) If the parties do not reach any agreement as to any matter as a result of the mediation, the mediator shall report the lack of any agreement to the court without any comment or recommendation. 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 which, if resolved or completed, would facilitate the possibility of a settlement.
(2) If an agreement is reached, it shall be reduced to writing and signed. The agreement shall than be filed with the court. If the agreement is complete on all issues, it shall be accompanied by a joint stipulation of disposition.
(3) After the agreement becomes an order of the court by joint stipulation, in the event of any breach or failure to perform under the agreement, the court, upon motion, may impose sanctions, including costs, interest, attorney fees, or other appropriate remedies including entry of judgment on the agreement.
Rule 2.8. Subsequent Involvement of Mediators
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 unless the subsequent association is clearly distinct from the mediation issues. The mediator is required to utilize an effective system to identify potential conflict of interest at the time of appointment. The mediator may not subsequently act as an investigator for any court-ordered report or make any recommendations to the court regarding the mediated litigation.
Rule 2.9. Rules of Evidence
With the exception of privileged communications, the rules of evidence do not apply in mediation, but factual information having a bearing on the question of damages should be supported by documentary evidence whenever possible.
Rule 2.10. Discovery
Whenever possible, parties are encouraged to limit discovery to the development of information necessary to facilitate the mediation process. Upon agreement by the parties or as ordered by the court, discovery may be deferred during mediation.
Rule 2.11. Sanctions
Upon petition by either party, the court may impose sanctions against any attorney, or party representative who fails to comply with these mediation rules, limited to assessment of mediation costs and/or attorney fees relevant to the process.
Rule 2.12. Confidentiality
Mediation shall be regarded as settlement negotiations. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in the course of mediation is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of the mediation process. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, or negating a contention of undue delay. Mediation meetings shall be closed to all persons other than the parties of record, their legal 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 parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators.
RULE 3. ARBITRATION
Rule 3.1. Agreement to Arbitrate
At any time fifteen (15) days or more after the period allowed for a peremptory change of venue under Trial Rule 76(2) or (3) has expired, the parties may file with the court an agreement to arbitrate wherein they stipulate whether arbitration is to be binding or nonbinding, whether the agreement extends to all of the case or is limited as to the issues subject to arbitration, and the procedural rules to be followed during the arbitration process. Upon approval, the agreement to arbitrate shall be noted on the Chronological Case Summary of the Case and placed in the Record of Judgments and Orders for the court.
Rule 3.2. Case Status During Arbitration
During arbitration, the case shall remain on the regular docket and trial calendar of the court. In the event the parties agree to be bound by the arbitration decision on all issues, the case shall be removed from the trial calendar. During arbitration the court shall remain available to rule and assist in any discovery or pre-arbitration matters or motions.
Rule 3.3. Assignment of Arbitrators
Each court shall maintain a listing of lawyers engaged in the practice of law in the county who are willing to serve as arbitrators. Upon assignment of a case to arbitration, the plaintiff and the defendant shall, pursuant to their stipulation, select one or more arbitrators from the court listing or the listing of another court in the state. If the parties agree that the case should be presented to one arbitrator and the parties do not agree on the arbitrator, then the court shall designate three (3) arbitrators for alternate striking by each side. The party initiating the lawsuit shall strike first. If the parties agree to an arbitration panel, it shall be limited to three (3) persons. If the parties fail to agree on who should serve as members of the panel, then each side shall select one arbitrator and the court shall select a third. When there is more than one arbitrator, the arbitrators shall select among themselves a Chair of the arbitration panel. Unless otherwise agreed by the parties, arbitrators selected under this provision shall be compensated at the rate of one hundred dollars ($100.00) per hour, plus expenses, with the cost of arbitration to be split equally between the parties and paid within thirty (30) days after the arbitration evaluation, regardless of the outcome. Any arbitrator selected may refuse to serve without showing cause for such refusal.
Rule 3.4. Arbitration Procedure
(A) Notice of Hearing. Upon accepting the appointment to serve, the arbitrator or the Chair of an arbitration panel shall meet with all attorneys of record to set a time and place for an arbitration hearing. (Courts are encouraged to provide the use of facilities on a regular basis during times when use is not anticipated, i.e. jury deliberation room every Friday morning.)
(B) Submission of Materials. Unless otherwise agreed, all documents the parties desire to be considered in the arbitration process shall be filed with the arbitrator or Chair and exchanged among all attorneys of record no later than fifteen (15) days prior to any hearing relating to the matters set forth in the submission. Documents may include medical records, bills, records, photographs, and other material supporting the claim of a party. In the event of binding arbitration, any party may object to the admissibility of these documentary matters under traditional rules of evidence; however, the parties are encouraged to waive such objections and, unless objection is filed at least five (5) days prior to hearing, objections shall be deemed waived. In addition, no later than five (5) days prior to a hearing, each party may file with the arbitrator or Chair a pre-arbitration brief setting forth factual and legal positions as to the issues being arbitrated; if filed, pre-arbitration briefs shall be served upon the opposing party or parties. The parties may in their Arbitration Agreement alter the filing deadlines. They are encouraged to use the provisions of Indiana's Arbitration Act (IC 34-4-1-1 et seq.) and the Uniform Arbitration Act (IC 34-4-2-1 et seq.) to the extent possible and appropriate under the circumstances.
(C) Discovery. Rules of discovery shall apply. Thirty (30) days before an arbitration hearing, each party shall file a listing of witnesses and documentary evidence to be considered. The listing of witnesses and documentary evidence shall be binding upon the parties for purposes of the arbitration hearing only. The listing of witnesses shall designate those to be called in person, by deposition and/or by written report.
(D) Hearing. Traditional rules of evidence need not apply with regard to the presentation of testimony. As permitted by the arbitrator or arbitrators, witnesses may be called. Attorneys may make oral presentation of the facts supporting a party's position and arbitrators are permitted to engage in critical questioning or dialogue with representatives of the parties. In this presentation, the representatives of the respective parties must be able to substantiate their statements or representations to the arbitrator or arbitrators as required by the Rules of Professional Conduct. The parties may be permitted to demonstrate scars, disfigurement, or other evidence of physical disability. Arbitration proceedings shall not be open to the public. Arbitration proceedings shall be considered as settlement negotiations. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in the arbitration process is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of the arbitration process. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, or negating a contention of undue delay.
(E) Arbitration Determination. Within twenty (20) days after the hearing, the arbitrator or Chair shall file a written determination of the arbitration proceeding in the pending litigation and serve a copy of this determination on all parties participating in the arbitration. If the parties had submitted this matter to binding arbitration on all issues, the court shall enter judgment on the determination. If the parties had submitted this matter to binding arbitration on fewer than all issues, the court shall accept the determination as a joint stipulation by the parties and proceed with the litigation. If the parties had submitted the matter to nonbinding arbitration on any or all issues, they shall have twenty (20) days from the filing of the written determination to affirmatively reject in writing the arbitration determination. If a nonbinding arbitration determination is not rejected, the determination shall be entered as the judgment or accepted as a joint stipulation as appropriate. In the event a nonbinding arbitration determination is rejected, all documentary evidence will be returned to the parties and the determination and all acceptances and rejections shall be sealed and placed in the case file.
Rule 3.5. Sanctions
Upon petition by either party, the court may impose sanctions against any party or attorney who fails to comply with the arbitration rules, limited to the assessment of arbitration costs and/or attorney fees relevant to the arbitration process.
RULE 4. MINI-TRIALS
Rule 4.1. Purpose
A mini-trial is a case resolution technique applicable in litigation where extensive court time could reasonably be anticipated. This process should be employed only when there is reason to believe that it will enhance the expeditious resolution of disputes and preserve judicial resources.
Rule 4.2. Case Selection/Objection
At any time fifteen (15) days or more after the period allowed for peremptory change of venue under Trial Rule 76(2) or (3) has expired, a court may, on its own motion or upon motion of any party, select a civil case for a mini- hearing. Within fifteen (15) days after notice of selection for a mini- hearing, a party may object by filing a written objection specifying the grounds. The court shall promptly hear the objection and determine whether a mini-hearing is possible or appropriate in view of the objection.
Rule 4.3. Case Status Pending Mini-Hearing
When a case has been assigned for a mini-hearing, it shall remain on the regular docket and trial calendar of the court. The court shall remain available to rule and assist in any discovery or pre-mini-hearing matter or motion.
Rule 4.4. Mini-Hearing Procedure
(A) Mini-Hearing. The court will set a time and place for hearing and direct representatives with settlement authority to meet and allow attorneys for the parties to present their respective positions with regard to the litigation in an effort to settle the litigation. The parties may fashion the procedure as they deem appropriate.
(B) Report of Mini-Hearing. At a time set by the court, the attorneys of record shall report to the court the results of the hearing and the possibility of settlement of the issues. Unless otherwise agreed by the parties, the results of the hearing shall not be binding.
(C) Confidentiality. Mini-hearings shall be regarded as settlement negotiations. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or amount. Evidence of conduct or statements made in the course of the mini-hearing is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of the mini-hearing. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, or negating a contention of undue delay. Mini-hearings shall be closed to all persons other than the parties of record, their legal representatives, and other invited persons. The participants in a mini-hearing shall not be subject to process requiring the disclosure of any matter discussed during the mini-hearing, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties.
Rule 4.5. Sanctions
Upon petition by either party, the court may impose sanctions against a party or attorney who intentionally fails to comply with these mini-hearing rules, limited to the assessment of mediation costs and/or attorney fees relevant to the process.
RULE 5. SUMMARY JURY TRIALS
Rule 5.1. Purpose
The summary jury trial is a method for resolving cases in litigation when extensive court and trial time may be anticipated. This is a settlement process, and it should be employed only when there is reason to believe that a limited jury presentation may create an opportunity to quickly resolve the dispute and conserve judicial resources.
Rule 5.2. Case Selection
After completion of discovery, the resolution of dispositive motions, and the clarification of issues for determination at trial, upon written agreement of the parties, the court may select any civil case for summary jury trial consideration.
Rule 5.3. Agreement of Parties
A summary jury trial proceeding will be conducted in accordance with the agreement of the parties as approved by the court. At a minimum, this agreement will include the elements set forth in this rule.
(A) Completion Dates. The agreement shall specify the completion dates for:
(1) providing notice to opposing counsel of witnesses whose testimony will be summarized and/or introduced at the summary jury trial, proposed issues for consideration at summary jury trial, proposed jury instructions, and verdict forms;
(2) hearing pre-trial motions; and
(3) conducting a final pre-summary jury trial conference.
(B) Procedures for Pre-Summary Jury Trial Conference. The agreement will specify the matters to be resolved at pre-summary jury trial conference, including:
(1) matters not resolved by stipulation of counsel necessary to conduct a summary jury trial without numerous objections or delays for rulings on law;
(2) a final pre-summary jury trial order establishing procedures for summary jury trial, issues to be considered, jury instructions to be given, form of jury verdict to be rendered, and guidelines for presentation of evidence; and
(3) the firmly fixed time for the summary jury trial.
(C) Procedure/Presentation of Case. The agreement shall specify the procedure to be followed in the presentation of a case in the summary jury trial, including:
(1) abbreviated opening statements;
(2) summarization of anticipated testimony by counsel;
(3) the presentation of documents and demonstrative evidence;
(4) the requisite base upon which the parties can assert evidence; and
(5) abbreviated closing statements.
(D) Binding Verdict. The parties may agree that a unanimous verdict or a consensus verdict shall be deemed a final determination on the merits, and that judgment may be entered by the court.
Rule 5.4. Jury
Jurors for a summary jury trial will be summoned and compensated in normal fashion. Six (6) jurors will be selected in an expedited fashion. The jurors will be advised on the importance of their decision and their participation in an expedited proceeding. Following instruction, the jurors will retire and may be requested to return a unanimous verdict, a consensus verdict, or separate and individual verdicts which list each juror's opinion about liability and damages. If a unanimous verdict or a consensus verdict is not reached in a period of time not to exceed two (2) hours, then the jurors shall be instructed to return separate and individual verdicts in a period of time not to exceed one (1) hour.
Rule 5.5. Post Determination Questioning
After the verdict has been rendered, the jury will be advised of the advisory nature of the decision and counsel for each side will be permitted to ask general questions to the jury regarding the decisions reached which would aid in the settlement of the controversy. Counsel should not be permitted to ask specific questions of the jury relative to the persuasiveness of the form of evidence which would be offered by particular witnesses at trial, the effectiveness of particular exhibits, or other inquiries as could convert summary jury trials from a settlement procedure to a trial rehearsal.
Rule 5.6. Confidentiality
Summary jury trials shall be regarded as settlement negotiations. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or amount. Evidence of conduct or statements made in the course of the summary jury trial is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of the summary jury trial. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, or negating a contention of undue delay. Summary jury trials shall be closed to all persons other than the parties of record, their legal representatives, and other invited persons. The participants in a summary jury trial shall not be subject to process requiring the disclosure of any matter discussed during the summary jury trial, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties.
RULE 6. PRIVATE JUDGES
Rule 6.1. Case Selection
Pursuant to IC 33-13-15-3(c), upon the filing of a written joint petition and the written consent of a registered private judge, a civil case founded on contract, tort, or a combination of contract and tort shall be assigned to a private judge for disposition.
Rule 6.2. Compensation of Private Judge and County
As required by IC 33-13-15-8, the parties shall be responsible for the compensation of the private judge, court personnel involved in the resolution of the dispute, and the costs of facilities and materials. At the time the petition for appointment of a private judge is filed, the parties shall file their written agreement as required by this provision.
Rule 6.3. Hearing
All trials conducted by a private judge shall be conducted without a jury. The trial shall be open to the public, unless otherwise provided by Supreme Court rule or statute. A person who serves as a private judge has, for each case heard, the same powers as the judge of a circuit court in relation to court procedures, in deciding the outcome of the case, in mandating the attendance of witnesses, in the punishment of contempt, in the enforcement of orders, in administering oaths, and in giving of all necessary certificates for the authentication of the record and proceedings.
Rule 6.4. Place of Hearing
As provided by IC 33-13-15-7, a hearing in a case referred to a private judge may be conducted in any location agreeable to the parties, provided the location is posted in the Clerk's office at least three (3) days in advance.
Rule 6.5. Recordkeeping
All records in cases assigned to a private judge shall be maintained as any other public record in the court where the case was filed, including the Chronological Case Summary under the case number initially assigned to this case. Any judgment or designated order under Trial Rule 77 shall be entered in the Record of Judgments and Orders for the court where the case was filed and recorded in the Judgment Record for the Court as required by law.