Margaret Huff Mediation: Tennessee Ethics: TN Mediators, Mediation Ethics Tennessee

Searchable National Database of Mediation Ethics Opinions, including most Tennessee Opinions. Tennessee mediation ethics opinions are included in an American Bar Association National Clearinghouse for Mediator Ethics Opinions. See ADR Resources: Web Site Links for a link to the ABA Dispute Resolution Section web page that provides access to the mediator ethics opinions.

Article on Ethics Resources. Troubled by a mediation ethics enigma? State ADR rules a little vague? Take advantage of the free online ADR ethics resources from the ABA Section of Dispute Resolution outlined in Marnie Huff's article published by Mediate.com, "Do the 5 Step: ABA ADR Ethics Resources.

Rule 31. Tennessee Supreme Court Rule 31 governs the conduct of mediators and other alternative dispute resolution neutrals serving pursuant to that Rule. "Rule 31 ADR proceedings" are court-initiated proceedings under Rule 31, including "Case Evaluations," "Mediations," "Judicial Settlement Conferences," "Non-Binding Arbitrations," "Summary Jury Trials," "Mini-Trials," or other similar proceedings.

See TN ADR NEWS/REPORTS for information on 2009 and 2010 amendments to Rule 31.

NOTES ON 2007 AMENDMENTS OF RULE 31:

October 10, 2007: order amending the review process for complaints against both attorney and non-attorney Rule 31 mediators (complaints against attorney mediators raising a "substantial question as to the attorney's honesty, trustworthiness, or fitness as a in lawyer in other respects" shall be filed with the Tennessee Board of Professional Responsibility; all other complaints against attorney mediators, plus all complaints against non-attorney mediators, shall be filed with the Tennessee ADR Commission)

September 18, 2007: new Section 17(i) to Rule 31 (eliminates a conflict between Chapter 598, Public Acts of 2007 regarding special education mediations conducted by ALJs employed by Tennessee Secretary of State and Rule 31)

August 22, 2007: amended Section 17(c)(1) on training programs for Rule 31 mediators (now includes "confidentiality requirements, and any exceptions thereto as required by law")

August 22, 2007: revised Section 2 on definitions used in Rule 31(adds a definition of the term "days")

BPR. The Tennessee Board of Professional Responsibility (BPR) regulates the conduct of attorney/mediators pursuant to TN S.Ct. Rule 31, Section 11(b) and provides ethical guidance to attorney/mediators in Tennessee. See summary of some pertinent BPR opinions. Complete copies of formal ethics opinions of the Tennessee Board of Professional Responsibility are available on the BPR web site.

ADR Commission. The Tennessee Commission on Alternative Dispute Resolution regulates the conduct of non-attorney mediators pursuant to TN S.Ct. Rule 31, Section 11(a). See ADR Commission's opinion that it was not proper for a mediator to file a report that one party to a mediation did not act in good faith.

Tennessee Attorney General. In Opinion No. 06-079, the State Attorney General states that mediation does not involve the practice of law: "'Mediation,' as that term is defined in Tenn. S. Ct. R. 31, § 2(f), is an informal process in which a neutral third party conducts discussions among disputing parties to facilitate an agreement between them concerning the issues in dispute. Under the definitions of 'practice of law' in Tenn. Code Ann. § 23-3-101(2) and 'the practice of law' in Tenn. S. Ct. R. 9, § 20.2(3), one of the components of engaging in the practice of law is acting in a representative capacity either as an advocate or counselor. Because a mediator is neutral and not acting in a representative capacity, the mediator does not engage in the practice of law."

Judicial Ethics Committee Advisory Opinion. In Opinion 99-6, the Tennessee Judicial Ethics Committee states that a part-time General Sessions Court Judge is not per se prohibited from serving as a Rule 31 mediator. The propriety of acting as a mediator must be determined on a case by case basis, to ensure that the judge does not violate the Code of Judicial Ethics.

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