Marchal v. Craig

681 N.E.2d 1160 (1997)

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Nature of the Case

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Facts

H and W are the parents of one child, a boy born in 1988. H and W divorced in 1991. The divorce decree, entered pursuant to a settlement agreement, provided that both would have joint legal custody but that H had the right to make all major decisions. The parties would share physical custody of the child on approximately a 50-50 basis. H petitioned the trial court to order mediation. The parties entered into a written agreement on January 12, 1993, that Dr. John Ehrmann, a clinical psychologist, would attempt to resolve all child related issues; but that if an agreement cannot be reached, Dr. Ehrmann has authority to resolve the dispute considering the best interests, and his resolution shall be determinative. Mediation failed, and the litigation resumed. Both parties stipulated that Dr. Ehrmann would be an acceptable witness. H proceeded to trial pro se. At trial, H objected to the testimony of Dr. Ehrmann based upon the then effective version of Ind. Alternative Dispute Resolution Rule 2.8, which prohibits any person who has served as a mediator in a proceeding may not testify, and the confidentiality requirement may not be waived by the parties. The trial court's findings and judgment, awarding sole legal custody of the child to W, relied extensively on the evidence provided by Dr. Ehrmann. H appealed.