What is mediation anyway?
Mediation is a form of "Alternative Dispute Resolution."
Alternative Dispute Resolution is a relatively new procedure used
by the courts to resolve disputes without trials. The theory is
that many cases that result in trial can be resolved if there is
a formal process by which the parties meet to discuss the issues
in the case. The process is controlled by Tennessee Supreme Court
Rule 31. Below are a few selected provisions from Rule 31:
Section 1. Application
Pursuant to the provisions of this Rule, a court may order the
parties to an eligible civil action to participate in an
alternative dispute resolution proceeding in accordance with this
Rule.
Section 2. Definitions
(c) "Mediation" is an informal process in which a
neutral person, called a mediator, conducts discussions among the
disputing parties designed to enable them to reach a mutually
acceptable agreement among themselves on all or any part of the
issues in dispute.
(e) "Non-binding arbitration" is a process in which
a neutral person or a panel, called an arbitrator or an
arbitration panel, considers the facts and arguments presented by
the parties and renders a decision which is non-binding.
(f) "Case evaluation" is a process in which a
neutral person or a panel, called an evaluator or evaluation
panel, after receiving brief presentations by the parties
summarizing their positions, identifies the central issues in
dispute as well as areas of agreement, provides the parties with
an assessment of the relative strengths and weaknesses of their
case, and may offer a valuation of the case.
Section 3. Initiation
Upon motion of either party, or upon its own motion, a court,
by order of reference, may order the parties to an eligible civil
action to participate in a judicial settlement conference,
mediation, or case evaluation.
Section 4. Evidence
Evidence of conduct or statements made in the course of
court-ordered alternative dispute resolution proceedings shall be
inadmissible in court to the same extent as conduct or statements
are inadmissible under Tennessee Rules of Evidence 408.
Section 6. Confidentiality
A Rule 31 dispute resolution neutral or settlement judge shall
preserve and maintain the confidentiality of all alternative
dispute resolution proceedings except where required by law to
disclose the information.
Section 9. Participation of Attorneys
Attorneys may appear with clients during alternative dispute
resolution proceedings.
APPENDIX A. STANDARDS OF PROFESSIONAL CONDUCT FOR RULE
31 MEDIATORS
(4) The Mediation Process.
(a) Orientation Session. On commencement of the mediation
session, a mediator shall inform all parties that the process
is consensual in nature, that the mediator is an impartial
facilitator, and that the mediator may not impose or force any
settlement on the parties.
(b) Continuation of Mediation. A mediator shall not
unnecessarily or inappropriately prolong a mediation session if
it becomes apparent that the case is unsuitable for mediation
or if one or more of the parties is unwilling or unable to
participate in the mediation process in a meaningful
manner.
(5) Self-Determination.
(a) Parties' Right to Decide. A mediator shall assist
the parties in reaching an informed and voluntary settlement.
Decisions are to be made voluntarily by the parties
themselves.
(b) Prohibition of Mediator Coercion. A mediator shall not
coerce or unfairly influence a party into a settlement
agreement and shall not make substantive decisions for any
party to a mediation process.
(c) Prohibition of Misrepresentation. A mediator shall not
intentionally nor knowingly misrepresent material facts or
circumstances in the course of conducting a mediation.
(d) A Balanced Process. A mediator shall promote a balanced
process and shall encourage the parties to conduct the
mediation deliberations in a nonadversarial manner.
(e) Mutual Respect. A mediator shall promote mutual respect
among the parties throughout the mediation process.
(8) Professional Advice.
(a) Generally. A mediator shall not provide information the
mediator is not qualified by training or experience to
provide.
(b) Independent Legal Advice. When a mediator believes a
party does not understand or appreciate how an agreement may
adversely affect legal rights or obligations, the mediator
shall advise the participants to seek independent legal
counsel.
(d) Personal Opinion. While a mediator may point out
possible outcomes of the case, a mediator should not offer a
firm opinion as to how the court in which the case has been
filed will resolve the dispute.