Mediation and Law Office of Hayden Lait

Some of the Responsibilities the ADR Commission is Charged With Are as Follows :

Reviewing and revising, if appropriate, the standards for listing Rule 31 Mediators;

Reviewing and revising, as and when appropriate, the standards of professional conduct that shall be required of Rule 31 Neutrals;

Reviewing the content of training programs to determine whether they meet the standards for qualification under Rule 31;

Assuring that all listed Rule 31 Mediators have participated in approved training, have complied with qualification requirements, and have certified their agreement to follow the guidelines and applicable standards and their understanding of the sanctions for failure to comply;

Evaluating and reviewing each listed Rule 31 Mediator for continued compliance with the established standards.

ADR, specifically mediation, is a tool now regularly used throughout the state to resolve disputes. The ADR Commission, Tenn. Bar Association (www.tba.org) and local bar associations Memphis (www.memphisbar.org), Nashville (www.nashvillebar.org), Knoxville (www.knoxbar.org), and Chattanooga(www.chattanoogalaw.org). All provide programs specifically geared to mediation.

II. Tennessee Law

The Uniform Mediation Act has not been passed in Tennessee.

Not all mediators are listed as Rule 31 mediators and have met the requirements as set forth by the court. There are no licensure or training requirements for non Rule 31 mediators in Tennessee.

Supreme Court Rule 31 is applicable to both General Civil matters and Family issues. This rule of court only applies to court-ordered mediation, which may be ordered by the court on its own motion or on the motion of a party. The court rule expressly does not govern private alternative dispute resolution.

Currently, the only TN statutes applicable to mediation are those in the section of our code relating to divorce and parenting issues.

These Statutes Are as Follows

TCA 36-4-130 Mediation - Confidentiality of Information & Documents in a divorce action.

The following statutes apply to domestic abuse:

T.C.A. 36-4-131, 36-6-305, & 36-6-107.

The following statutes apply to parenting issues:

T.C.A. 36-6-407, 36-6-408, 36-6-410, 36-6-411, & 36-6-414.

There are specific sections of the Rules of Professional Conduct that are applicable to attorneys involved in settlement issues, whether as a mediator or advocate. They are set forth in TN Supreme Court Rule 8.

The standards of professional conduct as set forth in Appendix A of Rule 31 apply to all Rule 31 mediators.

The Rules of Professional Conduct (Rule 8) and Rule 31 may be found at the TN Supreme Court website ( www.tsc.state.tn.us ).

III. Current Tennessee Case Law

1. Confidentiality v Public Right to Know

In the case of The Tennessean News v City of Lebanon (Tenn Ct. App. 2/13/04), the city refused to make a public record available, relying upon the confidentiality of mediation as set forth in Supreme Court Rule 31. In regard to this issue, the appeals court stated:" Rule 31 applies to court-ordered mediation, which may be ordered by the court on its own motion, or on motion of a party. To be so ordered, there must therefore be an underlying matter before the court. The rule expressly does not govern private alternative dispute resolution. Sup. Ct. R. 31 § 1. Mrs. Adams never initiated a claim against the City of Lebanon. Accordingly, the settlement mediation between Mrs. Adams and the City did not take place in the context of a Rule 31 court order...Rule 31 itself provides in its Section 1 that the standards and procedures in Rule 31 do not affect or address the general practice of alternative dispute resolution in the private sector outside the ambit of Rule 31," which can only be called into play when there is pending an "eligible civil action," as defined in Tenn. R.S.Ct. 31 § 2(d)."

Bottom Line: Non-court-annexed mediations are not protected by Rule 31. Due to the fact that this case involved a governmental entity subject to TN public records act, they still may not have been protected. Always have the parties execute an appropriate mediation agreement providing for confidentially. This would bind the parties contractually to confidentiality but would not supersede the public records act.

2. Mediation vs. Arbitration

In the case of Fontaine v Weekly Homes, L.P. (Tenn Ct. App. 8/13/03), an employee sued her employer for violations of the TN Human Rights Act and assault. The employer claimed that the employee was bound by the arbitration provisions of the employee handbook. The employee wanted to mediate, not arbitrate. The Appeals Court stated, "the language of the entire dispute resolution section of the handbook is permissive and fails to communicate to the employee that it should be considered binding. The section...communicates that it is the preferred mechanism of dispute resolution. However, the section on arbitration states that if a dispute involves a legally protected right, the employee "may opt directly for arbitration." Nothing in this section indicates to the employee that he has agreed to be bound to an arbitration process, thereby waiving his right to the courts (and mediation). More significantly, the language of the section evidences no intent by Weekly Homes to be bound to arbitration."

Bottom Line: Make sure your arbitration clause is drawn in accordance with the appropriate state law.

3. Mediator's lack of authority.

In the case of Mitchell v Mitchell, a post-divorce matter (Tenn Ct. App. 5/12/03) Wife appealed an order wherein the trial judge referred to a mediator Wife's motion to set aside a previous order and all other pending motions. The appeals court ruled that although the court could order the parties to mediation to attempt to agree on a modified permanent parenting plan, they find no authority to refer to a mediator a motion to set aside a court order. They went on to further state, nothing in the definition of mediation or elsewhere in Rule 31 authorizes a mediator, including a judge acting as a mediator, to resolve the dispute by imposing his or her judgment as to the correct resolution. If the parties are unable in mediation to reach an agreeable solution, they retain their rights to have the courts resolve their dispute through litigation. Nothing in Rule 31 gives a mediator the authority to render a decision on the legality or enforceability of an order of a court."

4. Enforcement of Oral Settlement Agreements

The Tennessee Supreme Court on 4/7/05 held in the case of Ledbetter v Ledbetter that the law precludes enforcement of oral mediation agreements. It further held that based upon section 10(d) of Rule 31, the mediator is prohibited from presenting evidence of such an agreement. The Ledbetter case involved an audiotaped mediation agreement subsequently repudiated by one of the parties.

Bottom Line: If possible, have all parties sign a written settlement agreement.

5. Trial Court Must Determine Best Interest of Children Notwithstanding Mediated Agreement on Parenting Issues.

Fletcher v. Fletcher (Tenn. Ct. App. September 26, 2011) is a post-divorce appeal involving parenting issues that were mediated. At the mediation, the parties signed an agreed parenting plan. The next day, the mother repudiated the agreement. The father filed a motion to enforce the mediation agreement. The mother requested an evidentiary hearing on whether the mediated parenting plan was in the best interest of the children. Declining to hear any evidence and citing Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006), the trial court found that the mediated parenting plan was a valid, enforceable contract. It entered an order enforcing the mediated parenting plan. Reversing that decision, the Court of Appeals held that the trial court used the wrong legal standard when it applied contract analysis to the mediated parenting plan. It remanded the case for an evidentiary hearing in the best interest of the minor children. The trial court cannot delegate a determination of the best interests of the children. Copy of opinion here.

Mediation & Law Office of Hayden Lait

I. Mediation in Tennessee