Eastern District of Tennessee
IN BRIEF
Process summary
Mediation.
The Eastern District of Tennessee adopted a mediation program on December 1, 1994. See below.
Magistrate judge settlement conferences.
When the court established the mediation program in late 1994, it phased out its successful magistrate judge settlement conferences, which had been in use for several years. The success of the magistrate judge settlement program was the impetus for the court-based mediation program. The transfer of settlement duties to lawyer mediations allows the magistrate judges to devote all their time to duties that can only be performed by a judge.
Of note
Obligations of counsel.
Counsel must be prepared to discuss the mediation program with the judges at the initial Rule 16 scheduling conference.
Information from court.
A brochure on the mediation program is available from the clerk and from the judge who conducts the Rule 16 scheduling conference.
Evaluation.
The mediation program will be evaluated after one year. The University of Tennessee Center for Conflict Resolution is providing evaluation and research services.
For more information
Murry Hawkins, Clerk of Court, 615-545-4228
IN DEPTH
Mediation in Tennessee Eastern
Overview
Description and authorization.
Under Local Rule 16.4, adopted December 1, 1994, the Eastern District of Tennessee has established a mediation program. Its purpose is to enhance communication, narrow issues, structure discovery, and encourage settlement at a stage in the litigation when mediation offers financial and other incentives to all parties. Any civil case may be referred to mediation if the parties consent. The parties pay a fee set by the mediator. Indigent parties may qualify for mediation at no cost to them. The Knoxville Bar Association administers the program in three court divisions, and the court administers it in one.
Number of cases.
During December 1994, five cases were referred to mediation, four in the Knoxville Division and one in the Chattanooga Division.
Case selection
Eligibility of cases.
Any civil case may elect to use mediation. The court may, in its discretion, withdraw from mediation any case not considered suitable for the process.
Referral method.
At the initial scheduling conference, parties are notified of the availability of mediation. Cases are referred to mediation only with consent of the parties. If the parties agree to mediate, they complete an application form and submit it and a $100 administrative fee to the Knoxville Bar Association in the Knoxville, Greenville, and Winchester divisions and to the clerk's office in the Chattanooga Division.
Opt-out or removal.
On its own initiative or on motion by a party, the court may withdraw a case from mediation for which the process would be inappropriate.
Scheduling
Referral.
The case may be referred to mediation at the initial scheduling conference or at any other time proposed by the parties.
Written submissions.
The mediators usually ask the attorneys to submit written statements before the mediation conference. The mediator normally seeks information regarding past settlement negotiations, if any, the attorneys' evaluations of the merits of their case, the probable range of any verdict that might be returned, the strengths and weaknesses of each party's case, and other information.
Mediation session.
The date for the mediation session is established by the mediator, who is also responsible for making arrangements for it through the clerk's office. Mediation sessions are generally conducted at the courthouse but may be held elsewhere at the mediator's discretion.
Number and length of sessions.
The length of mediation conferences and the number of such conferences are decided by the mediators and the parties.
Program features
Discovery and motions.
Other case events are not tolled during the mediation process. The court sets dates for pretrial and trial independently of the mediation process.
Party roles and sanctions.
The key decision makers must attend the mediation conference. Failure to comply with attendance or settlement authority requirements may subject a party to sanctions by the court.
Outcome.
The mediator must file a report with the assigned judge, reporting (1) whether or not settlement occurred; (2) whether the mediation was continued with the consent of the parties; or (3) whether the mediation was terminated without a settlement.
Confidentiality.
Mediation is confidential. No information about the process is provided to the trial judge or court staff. The mediation conference and all proceedings relating thereto, including statements made by any party, attorney, or other participant, are confidential and are inadmissible to the same extent that discussions of compromise and settlement are inadmissible under Fed. R. Evid. 408. No reporting or research requirement may require a mediator to divulge any confidence in violation of this rule.
Neutrals
Qualifications and training.
If the court approves, a candidate may be certified to serve as a mediator if he or she (1) is licensed to practice in Tennessee and is admitted to practice in this district; (2) has practiced law at least five years; (3) agrees, for purposes of evaluating the mediation program, to decline any engagement as a mediator in any case pending in this court unless that mediation takes place as part of the mediation program; (4) has had formal mediation training, including at least twenty hours of mediation training approved by the court and such procedural training as the clerk of the court provides; (5) agrees to be available to conduct at least one mediation per year without compensation; (6) agrees to commit to at least one year of service on the mediation panel; (7) agrees to participate in the reporting and research requirements of the program as they may be developed; (8) agrees to comply with the provisions of Local Rule 16.4 and any standing order that may be entered in any division of the court for purposes of implementing Rule 16.4; and (9) agrees to provide to the court such biographical and other information as the court may require.
Selection for case.
The parties must select a mediator from the court's panel of mediators.
Disqualification.
Mediators must disclose any current, past, or expected representation or consulting relationship with any party or attorney involved in the case. Mediators must also disclose any pecuniary interest and any matter that would result in disqualification of a justice, judge, or magistrate judge under 28 U.S.C. § 455.
Mediator's contract with parties.
Mediators operate as independent contractors and enter into written contracts with the parties for whom they conduct mediations.
Immunity.
The court has not addressed this issue.
Fees.
Mediators set their own fees, subject to court oversight for reasonableness. Parties also pay a $100 administrative fee for each case put into mediation. If a party cannot afford to pay the fee, the party or the mediator may apply to a magistrate judge for approval of pro bono mediation.
Program administration
The mediation program is administered by the Knoxville Bar Association in the Greenville, Knoxville, and Winchester Divisions. It is administered by the clerk's office in the Chattanooga Division.
Excerpted from
ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996,
a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution