Rule 31: Alternative Dispute Resolution - Mediation.
Section 1. Application. The standards and procedures adopted under this Rule apply only to Rule 31 Mediations and Rule 31 Mediators serving pursuant to this Rule. The standards and procedures do not affect or address the general practice of mediation or alternative dispute resolution in the private sector outside the ambit of Rule 31. Pursuant to the provisions of this Rule, a Court may order the parties in an Eligible Civil Action, as defined in Section 2(f), to participate in a Rule 31 Mediation.
Section 2. Definitions.
(a) "Alternative Dispute Resolution Commission" or "ADRC" is the Alternative Dispute Resolution Commission established by the Supreme Court pursuant to this Rule.
(b) "Baccalaureate degree" and "graduate degree" are only those degrees awarded by an institution of higher education accredited by an agency recognized by the Council for Higher Education and approved or listed by the United States Department of Education as a recognized accrediting agency. A Juris Doctor Degree from either: (1) a law school accredited by the American Bar Association or (2) a Tennessee law school approved by the Tennessee Board of Law Examiners pursuant to Tennessee Supreme Court Rule 7 shall be deemed a graduate degree under this Rule. A law degree earned outside the United States shall be evaluated on a case by case basis by the ADRC based on the provisions of Tennessee Supreme Court Rule 7.01.
(c) "Court" means any court exercising civil jurisdiction subject to the Tennessee Supreme Court Rules.
(d) “Court-Ordered Mediation” is a Rule 31 Mediation in which there is an Order of Reference from a Court or Judicial Officer.
(e) "Days" for purposes of the deadlines imposed by this Rule, means calendar days.
(f) "Eligible Civil Action" includes any civil action filed in a Court in which the Court has continuing jurisdiction, except civil commitments, adoption proceedings, habeas corpus and extraordinary writs, juvenile delinquency, or dependency and neglect cases. The term "Extraordinary writs" does not encompass claims or applications for injunctive relief.
(g) “Judicial Officer” serves by election or continuing appointment in a judicial office, such as: 1) a sitting judge in a Court; or 2) a Juvenile Referee, Divorce Referee, Referee, and Special Master.
(h) “Order of Reference” is a written or standing order of a Court or Judicial Officer entered in or related to an Eligible Civil Action in accordance with Section 3 herein directing the parties to participate in a Rule 31 Mediation.
(i) A "Rule 31 Mediation" is an informal process in which a Rule 31 Mediator conducts discussions among the parties that is designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of disputed issues: 1) in or related to an Eligible Civil Action; or 2) in any civil dispute in which the Rule 31 Mediator and the parties have agreed in writing that the mediation will be conducted pursuant to Rule 31.
(j) A “Rule 31 Mediator is any person listed by the ADRC as a mediator, pursuant to Section 14 of this Rule, who has complied with all applicable renewal listing and continuing education requirements and is approved by the ADRC to conduct Court-Ordered Mediations.
GENERAL PROVISIONS APPLICABLE TO ALL RULE 31 MEDIATIONS
Section 3. Initiation/Order of Reference
(a) Rule 31 Mediation may be initiated by the consent of the parties or by the entry of an Order of Reference.
(b) Upon motion of either party, or upon its own initiative, a Court by Order of Reference may order the parties in an Eligible Civil Action to participate in a Rule 31 Mediation.
(c) Any Order of Reference made on the Court's own initiative shall be subject to review on motion by any party and shall be vacated should the Court determine in its sound discretion that the referred case is not appropriate for Rule 31 Mediation or is not likely to benefit from submission to Rule 31 Mediation. Pending disposition of any such motion, the Rule 31 Mediation shall be stayed without the need for a court order.
(d) All Rule 31 Mediations shall be concluded as efficiently and expeditiously as possible given the circumstances of the case.
Section 4. Selection of Rule 31 Mediators
(a) Within 15 days of the date of an Order of Reference, the parties must notify the Court of the Rule 31 Mediator(s) agreed to by the parties or their inability to agree on a Rule 31 Mediator(s).
(b) When the parties cannot agree on the selection of a Rule 31 Mediator(s), the Court shall nominate a Rule 31 Mediator(s) in accordance with the following procedure:
(1) In a Rule 31 Mediation in which a single Rule 31 Mediator will serve, the Court shall designate three Rule 31 Mediators from a list of mediators maintained by the Program Manager of the Administrative Office of the Courts, as referenced in Section 4(d).
(2) In a Rule 31 Mediation in which more than one Rule 31 Mediator will serve, the Court shall designate three Rule 31 Mediators from a list of mediators maintained by the Program Manager of the Administrative Office of the Courts, as referenced in Section 4(d), for each seat on the panel and one additional Rule 31 Mediator for each seat on the panel for each additional party over two.
(3) After receiving the Court's nominations, each party shall strike one name from the Court’s list for each Rule 31 Mediator being selected. The Court shall appoint the remaining Rule 31 Mediator(s) unless a valid and timely objection is made within 10 days of the Court’s appointment. In the event the objection is upheld or if a designated Rule 31 Mediator otherwise cannot serve, the process under this section will be repeated to the extent necessary.
(4) The Court's nomination of any Rule 31 Mediator shall be by random selection unless the matter requires particular expertise not possessed by all Rule 31 Mediators.
(c) If a Rule 31 Mediation is conducted by consent of the parties without an Order of Reference, the parties shall choose the Rule 31 Mediator.
(d) The Programs Manager of the Administrative Office of the Courts shall maintain and make available to the public by posting on the AOC website a list of Rule 31 Mediators listed by the ADRC, the date of their approval, their occupation, and contact information.
Section 5. Reports in Rule 31 Mediations Conducted in Eligible Civil Actions
At the conclusion of a Rule 31 Mediation in an Eligible Civil Action, the Rule 31 Mediator shall submit a final report to the Court by filing same with the clerk of the court. The final report shall state only: (i) which parties appeared and participated in the Rule 31 Mediation; (ii) whether the case was completely or partially settled; and (iii) whether the Rule 31 Mediator requests that the costs of the Rule 31 Mediator's services be charged as court costs. The report shall be submitted within the time specified by the Court in the Order of Reference. In the event there is no Order of Reference or the Order of Reference does not specify a deadline, the final report shall be submitted within 60 days of the conclusion of the Rule 31 Mediation or within the time period specified by the Court.
Section 6. Participation of Attorneys
Attorneys may participate with their clients during Rule 31 Mediations.
Section 7. Confidential and Inadmissible Evidence
Evidence of conduct, information disclosed, or any statement made in the course of a Rule 31 Mediation is confidential to the extent agreed by the parties or provided by other law or rule of this State. Such evidence shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408. No Rule 31 Mediator may be compelled to testify by deposition or otherwise regarding such conduct, information, or statements. A written mediated agreement signed by the parties is admissible to enforce the understanding of the parties.
Section 8. Costs
(a) The costs of any Rule 31 Mediation, including the costs of the services of the Rule 31 Mediator(s) may, at the request of the Rule 31 Mediator(s), be charged as court costs. The request to charge the costs of the services of the Rule 31 Mediator(s) should be submitted to the Court by filing same with the clerk of the court. If the parties appeal to the appellate court(s), the parties may advise the appellate court in their briefs whether the Rule 31 Mediator(s) requested that the cost of the Rule 31 Mediator's services be included in the court costs.
(b) The Court may, in its sound discretion, waive or reduce the costs of a Rule 31 Mediation.
GENERAL PROVISIONS APPLICABLE TO ALL RULE 31 MEDIATORS
Section 9. Standards of Professional Conduct for Rule 31 Mediators
(a) Rule 31 Mediators shall avoid the appearance of impropriety.
(b) Rule 31 Mediators shall comply with all rules and procedures promulgated by the Tennessee Supreme Court regarding qualifications, compensation, and participation in Rule 31 Mediations, including but not limited to the Standards of Professional Conduct for Covered Neutrals attached as Appendix A hereto. Under Tenn. Sup. Ct. R. 8, RPC 2.4(c)(9), violation of any of these rules and procedures by any Rule 31 Mediator who is an attorney constitutes a violation of the Rules of Professional Conduct.
(c) The Standards of Professional Conduct for Covered Neutrals attached as Appendix A are incorporated into this Rule.
(d) Ethics Advisory Opinion Committee
(1) The Ethics Advisory Opinion Committee (“the Committee”) shall provide written advisory opinions to Rule 31 Mediators and alternative dispute resolution organizations in response to ethical questions arising from Rule 31 and the Standards of Professional Conduct for Covered Neutrals.
(2) The Ethics Advisory Opinion Committee shall be composed of three members of the ADRC, one from each Grand Division, appointed on a rotating basis by the Chair of the ADRC when a request for an opinion is received and reviewed by the Programs Manager. The Chair may also appoint a committee, from time to time, to issue advisory opinions regarding issues of concern to the Commission.
(3) All requests for advisory opinions shall be in writing and shall be submitted to the Programs Manager.
(4) The Committee shall meet in person or by telephone conference as necessary to consider the request for an advisory opinion. Upon due deliberation, and upon the concurrence of a majority of the Committee, the Committee shall issue an opinion. The opinion shall be signed by each member of the Committee and filed with the Programs Manager. The opinion shall be made available to the public through the AOC website, the ADR News, and upon written request to the Programs Manager.
(5) Prior to publication, all identifying references to the requesting Rule 31 Mediator or the names of any persons, firms, organizations, or corporations shall be deleted from any request for an opinion, any document associated with the preparation of an opinion, and any opinion issued by the Committee.
(6) Reliance by a Rule 31 Mediator on an opinion of the Committee shall not constitute a defense in any disciplinary proceeding; such reliance, however, shall be evidence of good faith and may be considered by the ADRC in relation to any determination of guilt or in mitigation of punishment. If the requesting Rule 31 Mediator later is brought before the Grievance Committee on allegations of misconduct in the same mediation for which the Rule 31 Mediator requested and received an opinion, the ADRC members who served on the Ethics Advisory Opinion Committee shall be precluded from participating in the grievance procedure.
Section 10. Obligations of Rule 31 Mediators
(a) Before the commencement of any Rule 31 Mediation, the Rule 31 Mediator shall:
(1) Make a full and written disclosure of any known relationships with the parties or their counsel which may affect or give an appearance of affecting the Rule 31 Mediator’s neutrality.
(2) Advise the parties regarding the Rule 31 Mediator’s qualifications and experience.
(3) Discuss with the parties the rules and procedures that will be followed in the Rule 31 Mediation.
(b) During Rule 31 Mediations, the Rule 31 Mediator shall:
(1) Advise the Court in which the proceeding is pending if the Rule 31 Mediation is, or is likely to become, inappropriate, unfair, or detrimental in the referred action.
(2) Maintain impartiality toward all parties. Impartiality means freedom from favoritism or bias in favor of or against any party, issue, or cause.
(3) Refrain from giving legal advice, while serving as a Rule 31 Mediator, to the parties in the Rule 31 Mediation. However, while a Rule 31 Mediator should not offer a firm opinion as to how the Court in which a case has been filed will resolve the case, a Rule 31 Mediator may point out possible outcomes of the case and may indicate a personal view of the persuasiveness of a particular claim or defense.
(c) During and following Rule 31 Mediations, Rule 31 Mediators shall:
(1) Refrain from participation as attorney, advisor, judge, guardian ad litem, master, or in any other judicial or quasi-judicial capacity in the matter in which the Rule 31 Mediation was conducted.
(2) Provide a timely report as required under Section 5 of this Rule.
(3) Avoid any appearance of impropriety in the Rule 31 Mediator's relationship with any member of the judiciary or the judiciary's staff with regard to the Rule 31 Mediation or the results of the Rule 31 Mediation.
(4)Preserve and maintain the confidentiality of all information obtained during the Rule 31 Mediation and shall not divulge information obtained by the Rule 31 Mediator during the course of the Rule 31 Mediation without the consent of the parties, except as otherwise may be required by law.
(5)Assist the parties in memorializing the agreement of the parties at the end of the mediation. Rule 31 Mediators may assist the parties in filling out the Parenting Plan Forms maintained by the Administrative Office of the Courts pursuant to T.C.A. 36-6-404, the Marital Dissolution Agreement as approved by the Tennessee Supreme Court under Tenn. Sup. Ct. R. 52 and any other forms approved by the Tennessee Supreme Court.
(d)The Rule 31 Mediator shall not be called as a witness in any proceeding to enforce any terms of the resulting mediation agreement.
Section 11. Proceedings for Discipline of Rule 31 Mediators
(a) Initiation of Complaint
(1) Any individual who participated in a Rule 31 Mediation may file a complaint alleging a violation of or failure to comply with the provisions of this Rule or any standard promulgated under this Rule against the Rule 31 Mediator(s) who conducted the Rule 31 Mediation.
(2) Any complaint against a Rule 31 Mediator must be received by the Programs Manager of the Administrative Office of the Courts no later than 180 days after the date of the final mediation session or alleged violation of a provision of this Rule or any standard promulgated under this Rule.
(3) The complainant shall submit a sworn complaint to the Programs Manager using a complaint form promulgated by the ADRC and posted on the AOC website.
(4) Any complaint that is not sworn or is received later than 180 days after the date of the final mediation or alleged violation will not be accepted and the complainant will be barred from pursuing the complaint with the ADRC. This statute of limitations only applies to the ADRC’s exercise of its own procedures contained within this Rule.
(b) Processing of Complaint
(1) Once a Complaint has been received, the Programs Manager shall, within a reasonable period of time, forward the complaint to the ADRC Chair.
(2) Within a reasonable time after receiving the complaint from the Programs Manager, the ADRC Chair shall appoint a Grievance Committee consisting of three ADRC members, and, when possible, from the Grand Division in which the alleged act or failure to act giving rise to the allegations contained in the complaint took place. If the complaint is against an ADRC member, the Grievance Committee shall consist of three non-ADRC members appointed by the Supreme Court.
(3) The Grievance Committee shall, within a reasonable period of time, review the complaint and make a facial sufficiency determination as to whether the allegations contained in the complaint, if taken as true, may constitute a violation of Rule 31 or any standard promulgated under Rule 31.
(4) If the Grievance Committee finds that the conduct that is the subject of the complaint does not constitute a violation of Rule 31 or any standard promulgated under Rule 31, the Grievance Committee shall dismiss the complaint without prejudice and the Programs Manager shall notify the complainant and the Rule 31 Mediator of the dismissal.
(c) Process if Grievance Committee Determines Facial Sufficiency of Complaint
(1) If the Grievance Committee determines that the allegations, if taken as true, may constitute a violation of Rule 31or any standard promulgated under Rule 31, the Committee shall prepare a list of any rule(s) or standard(s) which the Rule 31 Mediator may have violated. The Programs Manager shall send a copy of the complaint, the list of alleged Rule violations and a copy of Rule 31 to the Rule 31 Mediator named in the complaint. Service shall be made by mailing a copy of the document to be served to such person’s last known address. Service by mail is complete upon mailing.
Service may also be made by sending him or her the document in Adobe PDF format to the Rule 31 Mediator’s last known email address as maintained under Section 15 or which shall be promptly furnished on request. A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Section 11.
(2) The Rule 31 Mediator shall send a written response to the Programs Manager by postal mail and electronic mail and the AOC must receive the response within 30 days of the posting in (c)(1). If the Rule 31 Mediator fails to timely respond to the allegations, the grievance shall be deemed admitted, and the Grievance Committee may, within 10 days, recommend sanctions per subsection (d)(2)(v).
(3) Within 10days of receipt of the Rule 31 Mediator’s response, the Programs Manager shall forward a copy of the Rule 31 Mediator's response to the complainant by postal mail and may also forward a copy by electronic mail. Within 30 days of posting of the Rule 31 Mediator’s response, the complainant shall send a written response to the Rule 31 Mediator's response to the Programs Manger by postal mail and electronic mail. The AOC must receive the complainant’s counter-response within 30 days of the Programs Manager’s posting of the Rule 31 Mediator’s response.
(4) Within 10 days of receipt of all responses, the Programs Manager shall forward all responses received to the Grievance Committee.
(5) Notwithstanding any other provision in this Rule, at any time while the Grievance Committee has jurisdiction, it or its designated chair may meet with the complainant and the Rule 31 Mediator, jointly or separately, in an effort to resolve the matter. These meetings may be in person, by video-conference, or by teleconference at the discretion of the Committee. Any resolution may include sanctions if agreed to by the Rule 31 Mediator. If the Rule 31 Mediator agrees to sanctions and a resolution is reached, a stipulation of dismissal signed by the complainant and the Rule 31 Mediator with the concurrence of the Grievance Committee shall be submitted to the ADRC Chair and the complaint shall be dismissed with prejudice. At any time, the Grievance Committee may accept an admission by the Rule 31 Mediator and impose sanctions determined by the Committee per subsection (d)(2)(v).
(6) If there is no resolution per subsection (c)(5), the Grievance Committee shall review the complaint, the Rule 31 Mediator's response, the complainant's counter-response, and the result of any investigation directed by the Committee Chair, including any documentation, to determine whether there is probable cause to believe that the alleged misconduct occurred and constituted a violation of this Rule or any standard promulgated under Rule 31. If there is no probable cause, the Committee shall dismiss the complaint in a written decision and said decision shall be final with no right to an appeal. The Programs Manager shall forward a copy of the decision to the complainant and the Rule 31 Mediator.
(d) Process if Grievance Committee Determines Probable Cause
Upon a finding of probable cause, the Grievance Committee may:
(1) Without a hearing, determine by clear and convincing evidence that a violation has occurred and issue a written decision, including a statement noting the provisions of this Rule or any standard promulgated under Rule 31 that the Rule 31 Mediator failed to comply with and the Grievance Committee’s reasons for not proceeding to a hearing on the matter. In its decision, the Grievance Committee shall impose appropriate sanctions per subsection (d)(2)(v). The Programs Manager will send this written decision to the Rule 31 Mediator and the complainant; or
(2) Hold a hearing within 30 days or as soon thereafter as all parties, Grievance Committee members and witnesses are available for a hearing, on a date and at a location to be determined by the Grievance Committee.
(i) Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery and for the appearance of any person before the Grievance Committee may be issued by the chair of the Committee or the ADRC. Subpoenas may be served in any manner provided by law for the service of witness subpoenas in a civil action.
(ii) Any person who, without adequate justification, fails to obey a duly served subpoena may be cited for contempt of the Grievance Committee or ADRC. Should any witness fail, without justification, to respond to the lawful subpoena of the Committee or ADRC, or having responded, fail or refuse to answer all inquiries or produce evidence that has been lawfully subpoenaed, or should any person be guilty of disorderly or contemptuous conduct before any proceeding, the Chair of the Grievance Committee or ADRC may cause a petition to be filed before the circuit court of the county in which the contemptuous act was committed. The petition shall allege the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of the alleged contempt of the Grievance Committee or ADRC. Such petition shall pray for the issuance of an order to show cause before the circuit court why the circuit court should not find the person in contempt of the Grievance Committee or ADRC and why the person should not be punished by the court therefore. The circuit court shall issue such orders and judgments therein as the court deems appropriate.
(iii) Hearings by the Grievance Committee may be conducted informally, but shall be conducted pursuant to the Tennessee Rules of Evidence that may be liberally construed. Witnesses shall testify under oath. Proceedings may be reported by a court reporter, and the cost of the same shall be paid by the party requesting the reporting.
(iv) The complainant shall have the burden of proving all allegations by clear and convincing evidence.
(v) If, after the hearing, the Committee finds clear and convincing evidence that the Rule 31 Mediator has violated Rule 31 or any standard promulgated under Rule 31 and that such violation warrants a sanction(s), the Committee shall impose an appropriate sanction(s), including but not limited to, private admonition, a public reprimand, additional training, suspension, and/or disqualification. The Committee shall issue a written opinion containing its findings of fact and conclusions. The Programs Manager will forward a copy of the decision to the complainant and the Rule 31 Mediator.
(e) Appeal of Grievance Committee Decision
(1) Any party who desires to obtain a review of the decision of the Grievance Committee rendered either pursuant to subsection (c)(2), (d)(1), or following a hearing held pursuant to subsection (d)(2), may appeal to the full ADRC (excluding those members who served on the Grievance Committee that initially heard the complaint) by filing a written notice of appeal with the ADRC through the Programs Manager, within 30 days following the Committee's decision.
(2) If the parties agree to limit the issues to be presented for review, the ADRC may choose to accept those limitations. The full record of the subject disciplinary process, including the findings of the Grievance Committee, shall be made available to the ADRC during the review process.
(i) Content of the Record. The record on appeal shall consist of: (A) copies of all papers filed with the Programs Manager; (B) the original of any exhibits offered; (C) the transcript or statement of the evidence or proceedings, which shall clearly indicate and identify any exhibits offered in evidence and whether received or rejected; and (D) any other matter designated by a party and properly includable in the record.
(ii) Transcript of Stenographic or Other Substantially Verbatim Recording of Evidence or Proceedings. Except as provided in (iii) of Section 11(e)(2), if a stenographic report or other contemporaneously recorded, substantially verbatim recital of the Grievance Committee Hearing is available, the appellant shall have prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. Unless the entire transcript is to be included, the appellant shall, within 15 days after filing the notice of appeal, file with the Programs Manager and serve on the appellee a description of the parts of the transcript the appellant intends to include in the record, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary, the appellee shall, within 15 days after service of the description and declaration, file with the Programs Manager and serve on the appellant a designation of additional parts to be included. The appellant shall have the additional parts prepared at the appellant’s own expense. The transcript, certified by the appellant or the reporter as an accurate account of the proceedings, shall be filed with the Programs Manager within 60 days after filing the notice of appeal. Upon filing the transcript, the appellant shall simultaneously serve notice of the filing on the appellee. Proof of service shall be filed with the Programs Manager with the filing of the transcript. If the appellee has objections to the transcript as filed, the appellee shall file objections thereto with the Programs Manager within 15 days after service of notice of the filing of the transcript.
(iii)Statement of the Evidence When No Report, Recital, or Transcript Is Available. If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available, or if the appellant determines that the cost to obtain the stenographic report in the matter is beyond the financial means of the appellant or that the cost is more expensive than the matters at issue on appeal justify, and a statement of the evidence or proceedings is a reasonable alternative to a stenographic report, the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant as an accurate account of the proceedings, shall be filed with the Programs Manager within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. Proof of service shall be filed with the Programs Manager with the filing of the statement. If the appellee has objections to the statement as filed, the appellee shall file objections thereto with the Programs Manager within 15 days after service of the declaration and notice of the filing of the statement.
(3) An appealing party shall submit a brief describing the issues and matters for which the appealing party seeks a ruling and decision of the ADRC. This shall be submitted to the ADRC via the Programs Manger, within 45 days after filing a written notice of appeal with the ADRC. The brief shall be served on the other party by the appealing party.
(4) The appellee shall submit a responsive brief to the ADRC via the Programs Manger, within 30 days after the receipt of the appealing party's brief and serve a copy on the other party.
(5) Within 10 days of receipt of all briefs, the Programs Manager shall forward copies of all briefs to the ADRC members.
(6) The ADRC, without those members who served on the Grievance Committee and initially heard the complaint, will hear the appeal within a reasonable time. The standard of review shall be de novo on the record with no presumption of correctness. The appellate review shall be set as soon as reasonably possible.
(7) Sections 11(c)(5) and (d)(2)(iv-v) of the Rule shall also apply to the hearings of the ADRC.
(8) The ADRC will hear and determine the complaint and then issue a written decision as to whether the complainant has shown by clear and convincing evidence that the Rule 31 Mediator violated Rule 31 or any standard promulgated under Rule 31. If the ADRC determines that Rule 31 or any standard promulgated under Rule 31 was violated, the ADRC shall impose appropriate sanctions, including a private admonition, a public reprimand, additional training, suspension, and/or disqualification. The decision of the ADRC is final and there is no right to an appeal.
(f) General Provisions
(1) A Rule 31 Mediator’s failure to comply with sanctions imposed under this Section may, at the option of the ADRC, result in additional sanctions, including but not limited to loss of credentials, or the filing of a petition for contempt per the process set forth in subsection (d)(2)(ii).
(2) All matters, investigations, or proceedings involving allegations of misconduct by a Rule 31 Mediator, including all hearings and all information, records, minutes, files or other documents of the ADRC, the Grievance Committee, and AOC staff shall be confidential and privileged, and shall not be public records nor subject to disclosure, until or unless:
(i) a recommendation for the imposition of public discipline, without the initiation of a hearing, is filed with the ADRC by the Grievance Committee; or
(ii) the Rule 31 Mediator requests that the matter be public; or
(iii) the complaint is predicated upon conviction of the Rule 31 Mediator for a crime.
(3) All work product and work files (including internal memoranda, correspondence, notes and similar documents and files) of the ADRC, Grievance Committee, and staff shall be confidential and privileged.
(4) All participants in any matter, investigation, or proceeding shall conduct themselves so as to maintain confidentiality.
(5) The confidentiality of a mediation is deemed waived by the parties to the extent necessary to allow the complainant to fully present his or her case and to allow the Rule 31 Mediator to fully respond to the complaint. The waiver relates only to information necessary to deal with the complaint. The ADRC, the Grievance Committee, and staff will be sensitive to the need to protect the privacy of all parties to the mediation to the fullest extent possible commensurate with fairness to the Rule 31 Mediator and protection of the public.
(6) Once the Grievance Committee has issued an opinion, a synopsis of the case may be published in the ADRC quarterly newsletter and on the AOC website. The name of the complainant will not be included in the synopsis. If the Rule 31 Mediator is not publicly sanctioned, the name of the Rule 31 Mediator will not be included in the synopsis.
(7) Members of the Grievance Committee, the ADRC and AOC staff shall be immune from civil suit for any conduct in the course of their official duties.
(8) Notwithstanding any other provision of this Rule, if a grievance results in a finding, whether by admission or by decision of the Grievance Committee or the ADRC, that a Rule 31 Mediator who is also an attorney violated Rule 31 or any standard promulgated under Rule 31, and once any rights of appeal have been exhausted or have expired, the ADRC shall report the finding to the Board of Professional Responsibility of the Supreme Court of Tennessee.
Section 12. Privilege and Immunity
Activity of Rule 31 Mediators in the course of Rule 31 Mediations shall be deemed to be privileged and the performance of a judicial function and for such acts Rule 31 Mediators shall be entitled to judicial immunity.
Section 13. Compensation
Rule 31 Mediators are entitled to be compensated at a reasonable rate for participation in Court-Ordered Mediations, except pro bono proceedings pursuant to Section 15 of this Rule.
PROVISIONS REGARDING QUALIFICATIONS AND TRAINING OF RULE 31 MEDIATORS
Section 14. Rule 31 Mediators
No person shall act as a Rule 31 Mediator without first being listed by the ADRC. To be listed, an applicant must:
1) submit an application and pay application fees set by the ADRC;
2) comply with the qualification and training requirements set forth in this section. All training must have been approved by the ADRC as set forth in subsection (f) and must have been completed within the six years immediately preceding the application seeking Rule 31 Mediator listing;
3) certify in writing an intention to comply with the conditions and obligations imposed by Rule 31, including those requirements related to pro bono obligations;
4) submit two character references evidencing good character and suitability for the practice of mediation;
5) disclose convictions for any felony or for a misdemeanor involving violence, dishonesty or false statement if such conviction is ten years old or less as provided in Tennessee Rule of Evidence 609;
6) If the applicant's profession requires licensing, the applicant shall also provide documentation that the applicant is in good standing or possesses a valid license with the Board or Agency charged with issuing licenses to practice in the applicant's profession. Failure to pay board or agency dues when there is no intent by the applicant to practice in the licensed occupation or profession in the jurisdiction of licensure shall not constitute a lack of good standing for purposes of Rule 31;
7) If the applicant has held a professional standing which requires licensing, the applicant shall also provide documentation of the applicant’s complete disciplinary history including closed and open grievances for each license the applicant has held. The applicant must not have a disciplinary history with the Board or Agency charged with issuing licenses to practice in any such profession that would demonstrate an unsuitability for the practice of mediation. If the applicant has been licensed at one time and is no longer licensed in his/her occupation or profession due to disciplinary reasons, the applicant will not be approved for listing and may reapply when his/her license has been restored.
(a) Rule 31 Mediators in General Civil Cases.
(1) To be listed by the ADRC as a Rule 31 Mediator in general civil cases, one must also:
(i) meet one of the following education/work experience requirements:
(A) have a graduate degree plus four years of full time work experience. Full time work experience shall be defined as 35 hours or more of work per week.
(B) have a baccalaureate degree plus six years of full time work experience. Full time work experience shall be defined as 35 hours or more of work per week.
(ii) complete and provide proof of attendance of 40 hours of general mediation training which includes the curriculum components specified by the ADRC for Rule 31 Mediators in general civil cases.
(b) Rule 31 Mediators in Family Cases.
(1) To be listed as a Rule 31 Mediator in family cases, one must also:
(i) meet one of the following education/work experience requirements:
(A) have a baccalaureate degree with ten years full time work experience in psychiatry, psychology, counseling, family mediation, social work, education, law, or accounting. Full time work experience shall be defined as 35 hours or more of work per week.
(B) be a Certified Public Accountant and have four years of full time work experience in psychiatry, psychology, counseling, social work, education, law, or accounting. Full time work experience shall be defined as 35 hours or more of work per week.
(C) have a graduate degree and have four years of full time work experience in psychiatry, psychology, counseling, social work, education, law, or accounting. Full time work experience shall be defined as 35 hours or more of work per week.
(ii) complete and provide proof of attendance of 40 hours of training in family mediation which includes the curriculum components specified by the ADRC for Rule 31 Mediators in family cases and which also includes four hours of training in screening for and dealing with domestic violence in the mediation context; and
(iii) complete and provide proof of attendance of six additional hours of training in Tennessee family law and court procedure. It is provided, however, that the ADRC may approve fulfillment of this requirement for applicants who have substantially complied with completion of at least six hours of ADRC-approved training devoted to Tennessee family law and/or procedure within the three-year period immediately prior to the completion of the requirements of Section 14(c)(1)(i) through (xii) of this Rule.
(c) Content of Training Programs for Rule 31 Mediators.
(1) Before being listed either as Rule 31 General Civil Mediators or as Rule 31 Family Mediators, applicants shall complete a course of training consisting of not less than 40 hours, including the following subjects:
(i) Rule 31 and procedures and standards adopted thereunder;
(ii) conflict resolution concepts;
(iii) negotiation dynamics;
(iv) court process;
(v) mediation process and techniques;
(vi) communication skills;
(vii) standards of conduct and ethics for Rule 31 Neutrals;
(viii) community resources and referral process;
(ix) cultural and personal background factors;
(x) attorneys and mediation;
(xi) the self-represented party and mediation; and
(xii) confidentiality requirements, and any exceptions thereto as required by law.
(d) Waiver of Training Requirements for Certain Rule 31 Mediators.
(1) Upon petition to and acceptance by the ADRC, the following persons may be qualified as Rule 31 Mediators without first complying with training requirements set forth in Section 14(a), (b), or (c) of this Rule if they satisfy the work experience requirements as noted in this section:
(i) persons holding graduate degrees who have passed a mediation course which awards at least three semester hours credit and which includes the curriculum components set forth in this Rule or their substantial equivalent as determined by the ADRC and that the mediation course has been completed within the six years immediately preceding the application seeking Rule 31 Mediator listing;
(ii) trained mediators who comply with the qualifications set forth for Rule 31 Mediators in general civil cases or Rule 31 Mediators in family cases as may be determined by the ADRC with the assistance of the AOC Programs Manager, provided that their training be the substantial equivalent of that required under this Rule and that the training has been completed within six years prior to the application;
(iii) if a trained mediator has complied with the qualifications for approval as a mediator by another state and such approval has been granted, and if the mediator is in good standing in such state at the time of the application for approval in Tennessee, the ADRC may, upon review of the qualifications of the applicant, waive such training requirements as required by Section 14 of this Rule; and
(iv) alternative dispute resolution professors at accredited law schools or graduate schools who have taught a mediation course which awards at least three semester hours of credit for at least two semesters and which includes the curriculum components set forth in this Rule or their substantial equivalent as determined by the ADRC and that the applicant has taught the mediation course within the six years immediately preceding the application seeking Rule 31 Mediator listing.
(2) Applicants for qualification as a Rule 31 Mediator under this subsection will be assessed an additional application fee for this review of their applications by the ADRC.
(e) Procedure for Dual-Listing Rule 31 Mediators. The ADRC may dually list an individual listed as a Family Mediator or as a General Civil Mediator if that individual has met the requirements of Section 14(a), (b) or (c) of this Rule and has obtained such additional training in general civil or family mediation as in the judgment and discretion of the ADRC qualifies that individual to be dually listed as a General Civil Mediator and as a Family Mediator.
Completion of an ADRC-approved 24-hour Civil to Family Cross-Over Training will satisfy the training requirement for listed Rule 31 General Civil Mediators applying for Family Listing. Taking the full 46-hour Family Training is not required for Dual Listing.
Completion of an ADRC-approved 16-hour Family to Civil Cross-Over Training will satisfy the training requirement for listed Rule 31 Family Mediators applying for General Civil Listing. Taking the full 40-hour General Civil Training is not required for Dual Listing.
(f) Trainer Procedure for Obtaining Curriculum Approval and Grievance Procedure. Prior to offering their courses for initial listing training, or training to be listed as a Rule 31 Family Mediator with the designation of "specially trained in domestic violence issues", all trainers are required to obtain ADRC approval of their curricula. The trainers shall apply to the ADRC for curricula approval on forms approved by the ADRC. Any complaint regarding an ADRC approved Rule 31 initial listing training or training for special designation in domestic violence, shall be sent to the AOC Programs Manager who shall forward the same to the Training Committee appointed by the Chair of the ADRC for review. The Training Committee shall review the Complaint and recommend and any action it deems appropriate to the ADRC for final determination of action to be taken, if any.
(g) Procedure for Rule 31 Family Mediator's Additional Designation as "Specially Trained in Domestic Violence Issues." To obtain a designation as "Specially Trained in Domestic Violence Issues", the listed Rule 31 Family Mediator must have completed a twelve-hour course on domestic violence issues approved by the procedures outlined in subsection (f) and shall provide to the ADRC proof of attendance at the approved course. The listed Rule 31 Family Mediator may request a waiver of course attendance based upon training and/or experience determined by the ADRC to be substantially equivalent to the twelve hours of domestic violence topics approved by the ADRC.
(h) Full-Time Judicial Officer and Full-Time Court Clerk prohibited from being Listed as Rule 31 Mediator. A full-time Judicial Officer or full-time court clerk may not be listed as a Rule 31 Mediator. For purposes of this Rule, a full-time Judicial Officer includes all full-time judges designated in the Tennessee Code of Judicial Conduct, Rule 10, Part I. Application, of the Rules of the Tennessee Supreme Court. For the purpose of this Rule, a full-time court clerk includes a full-time clerk and master, a full-time circuit court clerk, a full-time criminal court clerk, a full-time juvenile court clerk, and a full-time general sessions court clerk. The Commission shall not list a full-time Judicial Officer or full-time court clerk as a Rule 31 Mediator.
(i) Listing of Part-time Judicial Officers. If the applicant otherwise meets the requirements of this Rule, the part-time Judicial Officers designated in the Tennessee Code of Judicial Conduct, Rule 10, Part I. Application, of the Rules of the Tennessee Supreme Court may be listed as Rule 31 Mediators, subject to the limitations found in Tenn. Sup. Ct. R. 10.
Section 15. Additional Obligations of Rule 31 Mediators
Rule 31 Mediators must maintain a current mailing address, e-mail address, and phone number with the Programs Manager of the Administrative Office of the Courts. Any change of mailing address, e-mail address, or phone number must be provided within thirty days of such change.
(a) Continuing Mediation Education
To remain listed by the ADRC, Rule 31 Mediators shall comply with the following continuing mediation education (“CME”) requirements:
(1) Courses for continuing education under this Rule may include but are not limited to, courses approved by the Commission on Continuing Legal Education & Specialization, programs approved by professional licensing agencies, programs provided by not-for-profit community mediation centers and not-for-profit mediation associations.
(2) Rule 31 Mediators must complete six hours of continuing mediation education every two years.
(i) General Civil Mediators - The six hours shall consist of:
(A) Three hours in mediation continuing education, of which at least one hour shall be related to mediation ethics, and
(B) Three hours general continuing education.
(ii) Family Mediators - The six hours shall consist of:
(A) Three hours in mediation continuing education, of which at least one hour shall be related to mediation ethics, and
(B) Three hours continuing education in family law.
(iii) Meeting the Rule 31 Family Mediator listing continuing education requirements will also meet the Rule 31 General Civil Mediator listing continuing education requirements. For dually listed Rule 31 Mediators who were not initially listed in the same year, the Mediator shall complete the hours required in Section 15(a)(2)(i-ii) of this Rule every two years based on the initial listing year of the Family listing.
(3) Rule 31 Mediators who are attorneys are not exempt from the continuing mediation education requirements of Rule 31 Section 15(a) of this Rule as a result of the age exemption for continuing legal education pursuant to Supreme Court Rule 21, Section 2.04(c).
(4) Failure to comply with continuing education requirements by March 31 following the year the hours were due will result in the lapse of the Rule 31 Mediator’s listing. Mediators cannot choose to have their listing(s) lapse and then have the listing(s) re-activated upon completion of CME hours that were past due.
(5) A mediator whose credentials have lapsed for failure to comply with CME requirements must re-apply to the ADRC for listing and must have taken all required training per section 14. If previous training was completed prior to six years from the re-application for listing, it is no longer valid and the applicant must re-take the training pursuant section 14. CME hours for dually listed mediators are due every two years based on the initial listing year of the Family listing. Failure to renew or comply with CME requirements based on the initial listing year of the Family listing will result in the lapse of credentials for both listings. Per (a)(2)(iii) of this section, meeting the Rule 31 Family Mediator listing continuing education requirements will also meet the Rule 31 General Civil Mediator listing continuing education requirements.
(b) Annual Renewal of Rule 31 Mediator Status. As a condition of continued listing, each Rule 31 Mediator must file an annual renewal form with the AOC Programs Manager stating that he/she is in good standing with any professional licensing agency or organization, if applicable, provide proof of attendance/completion of required continuing mediation education, and must pay the annual registration fee set by the ADRC. If all requirements of a Rule 31 Mediator’s annual renewal have not been completed by March 31 of the renewal year, then the Rule 31 Mediator’s listing lapses.
(c) Pro Bono Service. As a condition of continued listing, each Rule 31 Mediator shall, if requested by a Court, conduct up to three pro bono mediations per year, not to exceed 20 total hours for all mediations. At the initiation of a pro bono mediation, the Court may, upon a showing by one or more parties of an inability to pay, direct that the Rule 31 Mediator serve without pay. No Rule 31 Mediator will be required to conduct more than three pro bono proceedings or serve pro bono for more than 20 hours in any continuous 12-month period. A Rule 31 Mediator should aspire to render a minimum of fifty (50) hours of pro bono mediation services per year.
(d) Reports Required of Rule 31 Mediators. In addition to compliance with Section 5 of this Rule, Rule 31 Mediators shall be required to submit to the ADRC reports of any data requested by the ADRC as to all mediations conducted by a Rule 31 Mediator, including those mediations which are not Rule 31 Mediations. The report forms will be available on the AOC website and from the AOC. Such reports are confidential, not subject to disclosure for inspection or copying and will be maintained by the AOC for statistical compilation and analysis purposes only.
(e) Procedure Upon Revocation or Suspension.
(1) All listed Rule 31 Mediators subject to the provisions of this Rule, upon being subjected to revocation or suspension by any professional licensing agency or organization, within or outside the State of Tennessee, shall promptly inform the ADRC of such action in the manner prescribed herein.
(2) The listed Rule 31 Mediator, within 14 days of receipt of being advised of such revocation or suspension by the professional licensing agency or organization, shall provide notification of such action to the ADRC. Such notification to the ADRC shall include a copy of any order or directive by the professional licensing agency or organization setting forth the nature and duration of such revocation or suspension.
(3) In the event the discipline imposed by the professional licensing agency or organization has been stayed, any discipline imposed by the ADRC shall be deferred until such stay expires.
(4) Within 30 days after notification as provided above, the ADRC shall impose identical discipline unless the listed Rule 31 Mediator appeals to the ADRC the imposition of such discipline. The ADRC shall impose identical discipline unless it finds upon the face of the record upon which the discipline is predicated:
(i) That the procedure clearly was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(ii) That there clearly was such an infirmity of proof establishing the misconduct as to give rise to the conviction that the ADRC could not, consistent with its duty, accept as final the conclusion on that subject; or
(iii) That the misconduct established clearly warrants substantially different discipline.
Where the ADRC determines that any of said elements exist, the ADRC shall enter such other order as it deems appropriate.
(5) In all other respects, a final adjudication by the professional licensing agency or organization that the listed Rule 31 Mediator has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding by the ADRC.
(6) If the professional licensing agency or organization rescinds or otherwise terminates the revocation or suspension of a formerly listed Rule 31 Mediator, a certified copy of the agency's or organization's rescission or termination order shall constitute clear and convincing evidence of the same. Upon the removal of such revocation or suspension, an individual formerly listed as a Rule 31 Mediator under this Rule shall be entitled to apply to the ADRC for listing, under the then applicable criteria for listing.
PROVISIONS FOR ADMINISTRATION OF RULE 31
Section 16. Alternative Dispute Resolution Commission
(a) The ADRC members shall be appointed by the Supreme Court to three-year terms. No member who has served two successive three-year terms shall be eligible for reappointment to the ADRC until three years after the termination of the most recent term. The Court shall appoint one of the ADRC’s members as the Chair for a two-year term. The ADRC shall have the responsibility for:
(1) Reviewing and revising, if appropriate, the standards for listing Rule 31 Mediators;
(2) Determining the procedure for listing Rule 31 Mediators;
(3) Preparing and disseminating appropriate publications containing details regarding Rule 31 Mediations;
(4) Reviewing and revising, as and when appropriate, the standards of professional conduct that shall be required of Rule 31 Mediators;
(5) Reviewing the content of training programs to determine whether they meet the standards for qualification under Rule 31;
(6) 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;
(7) Reviewing and, where appropriate, approving applications for listing of Rule 31 Mediators;
(8) Evaluating the success of Rule 31 Mediations based on participant satisfaction, quality of results, and effect on case management;
(9) Evaluating and reviewing each listed Rule 31 Mediator for continued compliance with the established standards and requirements for continued listing;
(10) Suggesting to the Supreme Court rules and amendments of rules regarding alternative dispute resolution proceedings;
(11) Setting and collecting appropriate training, listing, and renewal fees; and
(12) Taking such other steps as may be reasonably necessary to establish, maintain and improve the alternative dispute resolution program in Tennessee.
(b) The Commission may create advisory committees to study specific issues identified by the Commission and to make such recommendations to the Commission as the members of the advisory committees deem appropriate.
The Commission may invite non-Commission members, including representatives from other branches of government, lawyers, mediators, and members of the public, to attend meetings and to participate as members of advisory committees to help further the work of the Commission.
(c) The day-to-day work of the ADRC shall be conducted by the Programs Manager of the Administrative Office of the Courts who shall be responsible for:
(1) Processing applications for inclusion on the list of Rule 31 Mediators in accordance with procedures recommended by the ADRC and approved by the Supreme Court;
(2) Processing annual renewal forms from Rule 31 Mediators and approving their continued qualification for Rule 31 listing;
(3) Taking such steps as may be necessary to provide the list of Rule 31 Mediators to the appropriate clerks of court and to maintain a current list of Rule 31 Mediators on the AOC website.
(4) Coordinating, approving, or providing training to Rule 31 Mediators;
(5) Processing grievances against Rule 31 Mediators;
(6) Coordinating the work of and assisting the ADRC;
(7) Assisting in the evaluation of alternative dispute resolution programs; and
(8) Taking such other steps in conjunction with the Supreme Court and the ADRC as may be reasonably necessary to establish, maintain and improve the alternative dispute resolution program in Tennessee.
APPENDIX A. Standards of Professional Conduct for Covered Neutrals
Section 1. Preamble
(a) Scope; Purpose. These standards are intended to instill and promote public confidence in the Alternative Dispute Resolution process under Tennessee Supreme Court Rules 31 and 31A and to be a guide to Neutrals serving under the same. The term “Neutral” as used in these standards refers only to those serving under Rule 31 or 31A. These standards do not affect or address the general practice of mediation or alternative dispute resolution in the private sector outside the ambit of Rules 31 and 31A. The term “ADR Proceeding” as used in these standards refers only to Rule 31 and Rule 31A proceedings. As with other forms of judicial system activity, Rule 31 and 31A proceedings must be built on public understanding and confidence. Persons serving as Neutrals are responsible to the parties, the public, and the courts to conduct themselves in a manner which will merit that confidence. These are a guide to Neutrals conduct in discharging their professional responsibilities under Supreme Court Rules 31 and 31A.
(b) Neutral's Role. In dispute resolution proceedings, decision-making authority rests with the parties. The role of the Neutral includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.
(c) General Principles. A dispute resolution proceeding under Rules 31 and 31A is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize:
(1) the needs and interests of the participants;
(3) procedural flexibility;
(4) privacy and confidentiality;
(5) full disclosure; and
Section 2. General Standards and Qualifications
(a) General. Integrity, impartiality, and professional competence are essential qualifications of any Neutral. A Neutral shall adhere to the highest standards of integrity, impartiality, and professional competence in rendering their professional service.
(1) A Neutral shall not accept any engagement, perform any service, or undertake any act which would compromise the Neutral's integrity.
(2) A Neutral shall maintain professional competence in dispute resolution skills including but not limited to:
(A) staying informed of and abiding by all statutes, rules, and administrative orders relevant to the practice of Rule 31 Mediations and 31A ADR Proceedings as applicable;
(B) continuing to meet the requirements of these rules; and
(C) regularly engaging in educational activities promoting professional growth.
(3) A Neutral shall decline appointment, withdraw, or request technical assistance when the Neutral decides that a case is beyond the Neutral's competence.
(b) Concurrent Standards. Nothing herein shall replace, eliminate, or render inapplicable relevant ethical standards not in conflict with these rules which may be imposed by the Code of Responsibility with respect to lawyers, or similar sets of standards imposed upon any Neutral by virtue of the Neutral's professional calling.
Section 3. Responsibilities to Courts
A Neutral shall be candid, accurate, and fully responsive to the Court concerning the Neutral's qualifications, availability, and all other pertinent matters. A Neutral shall observe all administrative policies, local rules of court, applicable procedural rules, and statutes. A Neutral is responsible to the judiciary for the propriety of the Neutral's activities and must observe judicial standards of fidelity and diligence. A Neutral shall refrain from any activity which has the appearance of improperly influencing the Court to secure appointment to a case, including gifts or other inducements to court personnel.
Section 4. The Dispute Resolution Process
(a) Orientation Session. On commencement of the ADR Proceeding, a Neutral shall inform all parties that settlements and compromises are dependent upon the consent of the parties, that the Neutral is an impartial facilitator, and that the Neutral may not impose or force any settlement on the parties.
(b) Continuation of an ADR Proceeding. A Neutral shall not unnecessarily or inappropriately prolong a dispute resolution session if it becomes apparent that the case is unsuitable for dispute resolution or if one or more of the parties is unwilling or unable to participate in the dispute resolution process in a meaningful manner.
(c) Avoidance of Delays. A Neutral shall plan a work schedule so that present and future commitments will be fulfilled in a timely manner. A Neutral shall refrain from accepting appointments when it becomes apparent that completion of the dispute resolution assignments accepted cannot be done in a timely fashion. A Neutral shall perform the dispute resolution services in a timely and expeditious fashion, avoiding delays wherever possible.
Section 5. Self-Determination
(a) Parties' Right to Decide. A Neutral engaged in an ADR Proceeding shall assist the parties in reaching an informed and voluntary settlement. Decisions are to be made voluntarily by the parties themselves.
(b) Prohibition of Neutral Coercion. A Neutral shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party to an ADR Proceeding.
(c) Prohibition of Misrepresentation. A Neutral shall not intentionally nor knowingly misrepresent material facts or circumstances in the course of conducting an ADR Proceeding.
(d) A Balanced Process. A Neutral shall promote a balanced process in an ADR Proceeding and shall encourage the parties to conduct the proceeding in a
(e) Mutual Respect. A Neutral shall promote mutual respect among the parties throughout the dispute resolution process.
Section 6. Impartiality
(a) Impartiality. A Neutral shall be impartial and advise all parties of any circumstances bearing on possible bias, prejudice, or impartiality. Impartiality means freedom from favoritism or bias in word, action, and appearance. Impartiality implies a commitment to aid all parties, as opposed to an individual party conducting ADR Proceedings.
(1) A Neutral shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity, and feasibility of proposed options for settlement.
(2) A Neutral shall withdraw from the ADR Proceeding if the Neutral believes that he or she can no longer be impartial.
(3) A Neutral shall not give or accept a gift, request, favor, loan, or any other item of value to or from a party, attorney, or any other person involved in and arising from any ADR Proceeding.
(b) Conflicts of Interest and Relationships; Required Disclosures; Prohibitions.
(1) A Neutral must disclose any current, past, or possible future representation or consulting relationship with any party or attorney involved in the ADR Proceeding. Disclosure must also be made of any pertinent pecuniary interest. Such disclosures shall be made as soon as practical after the Neutral becomes aware of the interest or the relationship.
(2) A Neutral must disclose to the parties or to the Court involved any close personal relationship or other circumstance, in addition to those specifically mentioned earlier in these standards, which might reasonably raise a question as to the Neutral’s impartiality. All such disclosures shall be made as soon as practical after the Neutral becomes aware of his or her candidacy as a Neutral in a given proceeding or becomes aware of the interest or the relationship.
(3) The burden of disclosure rests on the Neutral. After appropriate disclosure, the Neutral may serve if all parties so desire. If the Neutral believes or perceives that there is a clear conflict of interest, he or she should withdraw, irrespective of the expressed desires of the parties.
(4) A Neutral shall not provide counseling or therapy to either party during the dispute resolution process, nor shall a Neutral who is a lawyer represent any party in any matter during the dispute resolution proceeding.
(5) A Neutral shall not use the dispute resolution process to solicit, encourage, or otherwise incur future professional services with either party.
(6) A Neutral shall refrain from the appearance of serving as a legal advocate for one or both parties to an ADR Proceeding. A Neutral shall explain to the parties to the ADR Proceeding that the Neutral is not the advocate for either party nor is the Neutral the advocate for both parties.
Section 7. Confidentiality
(a) Required. A Neutral shall preserve and maintain the confidentiality of all ADR Proceedings except where required by law to disclose information.
(b) When Disclosure Permitted. A Neutral conducting an ADR Proceeding shall keep confidential from the other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure.
(c) Records. A Neutral shall maintain confidentiality in storing or disposing of records and shall render anonymous all identifying information when materials are used for research, training, or statistical compilations.
Section 8. Professional Advice
In addition to complying with Section 10(b)(3) of Rules 31 and 31A:
(a) Generally. A Neutral shall not provide information the Neutral is not qualified by training or experience to provide.
(b) Independent Legal Advice. When a Neutral believes a party does not understand or appreciate how an ADR Proceeding or resulting agreement may adversely affect legal rights or obligations, the Neutral shall advise the participants to seek independent legal counsel.
(c) When Party Absent. If one of the parties is unable to participate in an ADR Proceeding for psychological or physical reasons, a Neutral should postpone or cancel the proceeding until such time as all parties are able and willing to resume. Neutrals may refer the parties to appropriate resources if necessary (social service, lawyer referral, or other resources).
Section 9. Fees and Expenses
(a) General Requirements. A Neutral occupies a position of trust with respect to the parties and the courts. In charging for services and expenses, the Neutral must be governed by the same high standards of honor and integrity that apply to all other phases of the Neutral's work. A Neutral must endeavor to keep total charges for services and expenses reasonable and consistent with the nature of the case. If fees are charged, a Neutral shall give a written explanation of the fees and related costs, including time and manner of payment, to the parties prior to the ADR proceeding. The explanation shall include:
(1) the basis for and amount of charges, if any, for:
(A) sessions held in the ADR Proceeding;
(B) preparation for sessions;
(C) travel time;
(D) postponement or cancellation of ADR sessions by the parties and the circumstances under which such charges will normally be assessed or waived;
(E) preparation of any written settlement agreement;
(F) all other items billed by the Neutral; and
(2) the parties' pro rata share of fees and costs for the ADR Proceeding if previously determined by the Court or agreed to by the parties.
(b) Records. A Neutral shall maintain adequate records to support charges for services and expenses and shall make an accounting to the parties or to the Court upon request.
(c) Referrals. No commissions, rebates, or similar remuneration shall be given or received by a Neutral for referral of clients for an ADR Proceeding or related services.
(d) Contingent Fees. A Neutral shall not charge a contingent fee or base a fee in any manner on the outcome of the process.
(e) Principles. A Neutral should be guided by the following general principles:
(1) Time charges for a session held in an ADR Proceeding should not be in excess of actual time spent or allocated for the session.
(2) Time charges for preparation should be not in excess of actual time spent.
(3) Charges for expenses should be for expenses normally incurred and reimbursable in dispute resolution cases and should not exceed actual expenses.
(4) When time or expenses involve two or more sets of parties on the same day or trip, such time and expense charges should be prorated appropriately.
(5) A Neutral may specify in advance a minimum charge for a session to be held in an ADR Proceeding without violating this rule.
(6) When a Neutral is contacted directly by the parties for dispute resolution services, the Neutral has a professional responsibility to respond to questions regarding fees by providing a copy of the basis for charges for fees and expenses.
Section 10. Concluding an ADR Proceeding
(a) With Agreement.
(1) The Neutral shall request that the terms of any settlement agreement reached be memorialized appropriately and shall discuss with the participants the process for formalization and implementation of the agreement. The Neutral may assist the parties in filling out the Parenting Plan Forms maintained by the Administrative Office of the Courts pursuant to T.C.A. 36-6-404, the Marital Dissolution Agreement as approved by the Tennessee Supreme Court under Tenn. Sup. Ct. R. 52 and any other forms approved by the Tennessee Supreme Court.
(2) When the participants reach a partial settlement agreement, the Neutral shall discuss the procedures available to resolve the remaining issues.
(3) The Neutral shall not knowingly assist the parties in reaching an agreement which for reasons such as fraud, duress, overreaching, the absence of bargaining ability, or unconscionability would not be enforceable.
(b) Without Agreement.
(1) Termination by Participants. The Neutral shall not require a participant's further presence at an ADR Proceeding when it is clear the participant desires to withdraw.
(2) Termination by Neutral. If the Neutral believes that the participants are unable to participate meaningfully in the process, the Neutral shall suspend or terminate the ADR Proceeding. The Neutral should not prolong unproductive discussions that would result in emotional and monetary costs to the participants. The Neutral shall not continue to provide dispute resolution services in an ADR Proceeding where there is a complete absence of bargaining ability.
Section 11. Training and Education
(a) Training. A Neutral is obligated to acquire knowledge and training in the dispute resolution process, including an understanding of appropriate professional ethics, standards, and responsibilities.
(b) Continuing Education. It is important that Neutrals continue their professional education throughout the period of their active service. A Neutral shall be personally responsible for ongoing professional growth, including participation in such continuing education as may be required by law.
(c) New Neutral Training. An experienced Neutral should cooperate in the training of new Neutrals, including serving as a mentor.
Section 12. Advertising
All advertising by a Neutral must represent honestly the services to be rendered. No claim of specific results or promises which imply favoritism to one side should be made for the purpose of obtaining business. A Neutral shall make only accurate statements about the dispute resolution process, its costs and benefits, and the Neutral's qualifications.
Section 13. Relationships With Other Professionals
(a) The Responsibility of the Neutral Toward Other Neutrals.
(1) Relationship With Other Neutrals. A Neutral should not preside over an ADR Proceeding without first endeavoring to consult with the person or persons conducting any such dispute resolution proceeding occurring simultaneously in the same case.
(2) Co-Neutrals. In those situations where there is more than one Neutral in a particular case, each Neutral has a responsibility to keep the others informed of developments essential to a cooperative effort. The wishes of the parties supersede the interests of the Neutral.
(b) Relationship With Other Professionals.
(1) Cooperation. A Neutral should respect the relationship between dispute resolution and other professional disciplines including law, accounting, mental health, and the social services and should promote cooperation between Neutrals and other professionals.
(2) Prohibited Agreements. A Neutral shall not participate in offering or making a partnership or employment agreement that restricts the rights of a Neutral to practice after termination of the relationship, except an agreement concerning benefits upon retirement.
Section 14. Advancement of Dispute Resolution
(a) Pro Bono Service. Rule 31 Mediators have a professional responsibility to provide competent services to persons seeking their assistance, including those unable to pay for such services. As a means of meeting the needs of the financially disadvantaged, a Rule 31 Mediator should provide dispute resolution services pro bono or at a reduced rate of compensation whenever appropriate.
(b) Support of Dispute Resolution. A Neutral should support the advancement of dispute resolution by encouraging and participating in research, evaluation, or other forms of professional development and public education.
[Adopted September 4, 2001; amended by order filed January 2, 2007; by order filed August 22, 2007; by order filed September 18, 2007; by order filed October 10, 2007; by order filed April 24, 2009; by order filed March 10, 2011, effective April 11, 2011; by order filed October 19, 2011; by order filed January 4, 2012, effective July 1, 2012; by order filed February 12, 2013; and by order filed November 22, 2013; and by order filed December 16, 2014 effective January 1, 2015; by order filed February 12, 2015 effective July 1, 2015.; and by order filed October 3, 2018 effective November 1, 2018 except sections 14(2) and 15(a)(4) of Rule 31 effective November 1, 2019.]