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Rule 31A: Alternative Dispute Resolution - Case Evaluation, Judicial Settlement Conference, Mini-Trial, Non-Binding Arbitration, and Summary Jury Trial.

GENERAL PROVISIONS

Section 1. Application. The standards and procedures adopted under this Rule apply only to Rule 31A ADR Proceedings and only to dispute resolution neutrals serving pursuant to this Rule. They do not affect or address the general practice of alternative dispute resolution in the private sector outside the ambit of Rule 31A. Pursuant to the provisions of this Rule, a court may order the parties to an Eligible Civil Action to participate in a Rule 31A ADR Proceeding. Rule 31A ADR Proceedings are subject to the supervision of the Court in which the Eligible Civil Action is pending.

Section 2. Definitions.

(a) "Case Evaluation" as set forth in Sections 15 and 18 of this Rule, is a process in which a neutral person or three-person 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 an evaluation of the case.

(b) "Court" means any court exercising civil jurisdiction subject to the Tennessee Supreme Court Rules.


(c) "Days" for purposes of the deadlines imposed by this Rule, means calendar days.

(d) "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, or juvenile delinquency cases. The term "Extraordinary writs" does not encompass claims or applications for injunctive relief.

(e) “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.

(f) "Judicial Settlement Conference" as set forth in Section 16 of this Rule, is a mediation conducted by a Judicial Officer selected by the Court.

(g) "Mini-Trial" as set forth in Sections 14 and 19 of this Rule, is a settlement process in which each side presents an abbreviated summary of its case to the parties or representatives of the parties who are authorized to settle the case. A neutral person may preside over the proceeding. Following the presentation, the parties or their representatives seek a negotiated settlement of the dispute.

(h) "Non-Binding Arbitration" as set forth in Sections 13 and 17 of this Rule , 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.

(i) “Order of Reference” is a written or standing order of a court entered in or related to an Eligible Civil Action in accordance with Section 3 of this Rule directing the parties to participate in a Rule 31A ADR Proceeding.

(j) “Rule 31A ADR Proceeding” is an alternative dispute resolution proceeding in or related to an Eligible Civil Action, including, but not limited to "Case Evaluations", "Judicial Settlement Conferences", “Mini-Trials”, "Non-Binding Arbitrations", or "Summary Jury Trials".

(k) A "Rule 31A Neutral" is any impartial person, licensed as an attorney, who acts as a guide in a Rule 31A ADR Proceeding. Rule 31A Neutrals are required to be licensed attorneys.

(l) A "Summary Jury Trial" as set forth in Section 20 of this Rule, is an abbreviated trial with a jury in which litigants present their evidence in an expedited fashion. The litigants and the jury are guided by a presiding neutral person. After an advisory verdict from the jury, the presiding neutral person may assist the litigants in a negotiated settlement of their controversy.

GENERAL PROVISIONS APPLICABLE TO ALL RULE 31A ADR PROCEEDINGS

Section 3. Initiation/Order of Reference

(a) Rule 31A ADR Proceedings may be initiated in any Eligible Civil Action 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 Judicial Settlement Conference. With the consent of the parties, trial courts are also authorized to order the parties to participate in a Case Evaluation.

(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 a Rule 31A ADR Proceeding or is not likely to benefit from submission to a Rule 31A ADR Proceeding. Pending disposition of any such motion, the Rule 31A ADR Proceeding shall be stayed without the need for a court order.

(d) Upon motion of a party, or upon its own initiative and with the consent of all parties, a Court, by Order of Reference, may order the parties to participate in Non-Binding Arbitration, Mini-Trial, Summary Jury Trial, or other appropriate alternative dispute resolution proceedings.

(e) All Rule 31A ADR Proceedings shall be concluded as efficiently and expeditiously as possible given the circumstances of the case.

Section 4. Selection of Rule 31A Neutrals

(a) Within 15 days of the date of an Order of Reference, with the exception of an Order of Reference for a Judicial Settlement Conference, the parties must notify the Court of the Rule 31A Neutral or Rule 31A Neutrals agreed to by the parties or of their inability to agree on a Rule 31A Neutral or Rule 31A Neutrals.

(b) When the parties cannot agree on the selection of a Rule 31A Neutral or Neutrals, the Court shall nominate a Rule 31A Neutral or Neutrals in accordance with the following procedure:

(1) In a Rule 31A Proceeding in which a single Rule 31A Neutral will serve, the Court shall designate three Rule 31A Neutrals having the appropriate qualifications as set forth in this Rule and one additional Rule 31A Neutral for each additional party over two.

(2) In a Case Evaluation or Non-Binding Arbitration before a panel of three or more Rule 31A Neutrals, the court shall designate three Rule 31A Neutrals, meeting the qualifications as set forth in this for each seat on the panel and one additional Rule 31A Neutral 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 31A Neutral being selected. The Court then shall appoint the remaining Rule 31A Neutral or Neutrals unless a valid and timely objection is made within 10 days of the Court’s appointment. In the event the designated Rule 31A Neutral cannot serve, the process will be repeated to the extent necessary.

(4) The Court's nomination of Rule 31A Neutrals shall be fairly distributed among those who meet the qualifications set forth in Rule 31A Sections 14-18 of this Rule, unless the matter requires particular expertise not possessed by all who meet those qualifications.

Section 5. Reports

At the conclusion of a Rule 31A ADR Proceeding, the Rule 31A Neutral shall submit a final report to the Court by filing same with the clerk of the court. The final report shall state only: (i) the name of the parties who appeared and participated in the Rule 31A ADR Proceeding; (ii) whether the case was completely or partially settled; and (iii) whether the Rule 31A Neutral requests that the costs of the Rule 31A Neutral'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 31A ADR Proceeding or within the time period specified by the Court.

Section 6. Participation of Attorneys

Attorneys may participate with their clients during Rule 31A ADR Proceedings.

Section 7. Confidential and Inadmissible Evidence

Evidence of conduct, information disclosed, or statements made in the course of a Rule 31A ADR Proceeding conducted by a Rule 31A Neutral is confidential to the extent provided in the Order of Reference or as 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 31A Neutral may be compelled to testify by deposition or otherwise regarding such conduct, information, or statements. A written mediated agreement is admissible to enforce the understanding of the parties.

Section 8. Costs

The costs of any Rule 31A ADR Proceeding, including the costs of the services of a Rule 31A Neutral may, at the request of the Rule 31A Neutral, be charged as court costs. The request to charge the costs of the services of the Rule 31A Neutral(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 shall advise the appellate court in their briefs whether the Rule 31A Neutral(s) requested that the cost of the Rule 31A Neutral's services be included in the court costs.

The Court may, in its sound discretion, waive or reduce the costs of a Rule 31A ADR Proceeding.

GENERAL PROVISIONS APPLICABLE TO ALL RULE 31A NEUTRALS

Section 9. Standards of Professional Conduct for Rule 31A Neutrals

(a) Rule 31A Neutrals shall avoid the appearance of impropriety.

(b) Rule 31A Neutrals shall comply with all rules and procedures promulgated by the Tennessee Supreme Court regarding qualifications, compensation, and participation in Rule 31A ADR Proceedings, 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 31A Neutral who is an attorney constitutes a violation of the Rules of Professional Conduct and should be reported directly to Board of Professional Responsibility.

(c) The Standards of Professional Conduct for Covered Neutrals attached as Appendix A are incorporated into this Rule.

Section 10. Obligations of Rule 31A Neutrals

(a) Before the commencement of any Rule 31A ADR Proceeding, the Rule 31A Neutral 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 neutrality of the Rule 31A Neutral.

(2) Advise the parties regarding the Rule 31A Neutral's qualifications and experience.

(3) Discuss with the parties the rules and procedures that will be followed in the Rule 31A ADR Proceeding.

(b) During Rule 31A ADR Proceedings, the Rule 31A Neutral shall:

(1) Advise the Court in which the proceeding is pending if the Rule 31A ADR proceeding 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 31A Neutral, to the parties in the Rule 31A ADR Proceeding. However, while a Rule 31A Neutral should not offer a firm opinion as to how the court in which a case has been filed will resolve the case, a Rule 31A Neutral may point out possible outcomes of the case and may indicate a personal view of the persuasiveness of a particular claim or defense. Moreover, an "evaluation" pursuant to a Case Evaluation, an "award" pursuant to a Non-Binding Arbitration, or an "advisory verdict" pursuant to a Summary Jury Trial will not be considered to be "legal advice" for purposes of this Rule.

(c) During and following Rule 31A ADR Proceedings, Rule 31A Neutrals 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 31A ADR Proceeding was conducted.

(2) Provide a timely report as required under section 5 of this Rule.

(3) Avoid any appearance of impropriety in the Rule 31A Neutral's relationship with any member of the judiciary or the judiciary's staff with regard to the Rule 31A ADR Proceeding or the results of the Rule 31A ADR Proceeding.

(4) Preserve and maintain the confidentiality of all information obtained during the Rule 31A ADR Proceeding and shall not divulge information obtained by the Rule 31A Neutral during the course of Rule 31A ADR Proceeding without the consent of the parties, except as otherwise may be required by law.

(d) A Rule 31A Neutral shall not be called as a witness in any proceeding to enforce any terms of the resulting agreement.

Section 11. Privilege and Immunity

Activity of Rule 31A Neutrals in the course of Rule 31A ADR Proceedings shall be deemed to be privileged and the performance of a judicial function and for such acts Rule 31A Neutrals shall be entitled to judicial immunity.

Section 12. Compensation

Rule 31A Neutrals are entitled to be compensated at a reasonable rate for participation in court-ordered alternative dispute resolution proceedings.
 

PROVISIONS REGARDING QUALIFICATIONS OF RULE 31A NEUTRALS

Section 13. Rule 31A Neutrals in Rule 31A Non-Binding Arbitration

(a) The Parties may select any lawyer in good standing to act as an arbitrator in a Non-Binding Arbitration.

(b) Where the Court, pursuant to Section 4 of this Rule, appoints a Rule 31A Neutral to act as an arbitrator in a Non-Binding Arbitration of a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.

(c) Where the Court, pursuant to Section 4 of this Rule, appoints a Rule 31A Neutral to act as an arbitrator in a Non-Binding Arbitration of a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which time a substantial portion of the lawyer's practice shall have been family cases.

Section 14. Rule 31A Neutrals Presiding in Mini-Trials

(a) The Parties may select any lawyer in good standing and admitted to practice to act as a Rule 31A Neutral in a Mini-Trial.

(b) Where the Court, pursuant to Section 4 of this Rule, appoints a Rule 31A Neutral to act as a Rule 31A Neutral in a Mini-Trial in a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.

(c) Where the Court, pursuant to Section 4 of this Rule, appoints a Rule 31A Neutral to act as a Rule 31 Neutral in a Mini-Trial in a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which a substantial portion of the lawyer's practice shall have been in family cases.

Section 15. Rule 31 Case Evaluators

(a) The parties may select any lawyer in good standing to act as an evaluator in general civil or family cases.

(b) Where the Court, pursuant to Section 4 of this Rule, appoints a Rule 31A Neutral to act as an evaluator in a general civil case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years.

(c) Where the Court, pursuant to Section 4 of this Rule, appoints a Rule 31A Neutral to act as an evaluator in a family case, the person appointed shall be a lawyer in good standing and shall have been admitted to practice for at least ten years, during which a substantial portion of the lawyer's practice shall have been in family cases.

PROVISIONS RELATIVE TO PARTICULAR RULE 31A ADR PROCEEDINGS

Section 16. Judicial Settlement Conferences

Trial courts are authorized to conduct Judicial Settlement Conferences. However, a judge who participates in a Judicial Settlement Conference is precluded from presiding over the trial or any other contested issues in that matter.

Section 17. Non-Binding Arbitration

Trial courts, with the consent of the parties, are authorized to order Non-Binding Arbitration. Rule 31A Neutrals serving in Non-Binding Arbitrations will be subject to Appendix A, Standards of Professional Conduct for Covered Neutrals.

Section 18. Case Evaluation

Trial courts, with the consent of the parties, are authorized to order a Case Evaluation. Rule 31A Neutrals serving in Case Evaluations will be subject to Appendix A, Standards of Professional Conduct for Covered Neutrals.

Section 19. Mini-Trial

Mini-Trials may be ordered only with the consent of the parties. It is intended that this ADR process be flexible so that counsel, in consultation with the Court, design a procedure which is suited for the Eligible Civil Action. Rule 31A Neutrals serving in Mini-Trials will be subject to Appendix A, Standards of Professional Conduct for Covered Neutrals.

Section 20. Summary Jury Trial

Summary Jury Trials may be ordered only with the consent of the parties. It is intended that this ADR process be flexible so that counsel, in consultation with the Court, can design a procedure which is suited for the Eligible Civil Action. Rule 31A Neutrals serving in Summary Jury Trials will be subject to Appendix A, Standards of Professional Conduct for Covered Neutrals.

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;

(2) fairness;

(3) procedural flexibility;

(4) privacy and confidentiality;

(5) full disclosure; and

(6) self-determination.

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 nonadversarial manner.

(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 by order filed October 3, 2018 effective November 1, 2018.

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