TBA Dispute Resolution Section February 2002 Newsletter

The Newsletter for Conflict Resolution Neutrals and Attorneys
Published by the Dispute Resolution Section of the Tennessee Bar Association

NOTE: Unless otherwise noted, this Newsletter may be freely redistributed. We request an acknowledgement that "This Newsletter [Article] was previously published in the Dispute Resolution Section's [Month and Year of Publication] Newsletter. Reprinted with permission of the Tennessee Bar Association." Contributions of articles, comments, and suggestions are solicited.

In this issue

UNCLE MOPY WANTS YOU!
If you are interested in being an active member of the Section’s leadership group starting for the upcoming fiscal year, please contact our Chair, David Taylor, at dtaylor@bccb.com or by telephone at 615-252-2396 by MARCH 8th. Or, if you have any recommendations, contact David. Report on Section’s ADR Section’s February Executive Council Meeting

Lurie Reports on Dangers of Using Party-Appointed Arbitrators
"You Can’t Always Get What You Want" – Writing Appellate Reviews into Arbitration Agreements

Circuit City Stores v. Adams On Remand: 9th Circuit Rules Arbitration Agreement Unconscionable

Picker on Aiding Negotiation by Breaking Down Barriers

A Good Man Ain’t Hard to Find – Taylor to head NBA ADR Committee

Tennessee Valley Mediation Association Begins Operations

Fowler on the Knoxville Community Mediation Center

A Parenting Plan for All??? Jackson Proposes a Uniform Format.

ADR SECTION’S FEBRUARY EXECUTIVE COUNCIL MEETING

On February 19th the Executive Council met in a conference call meeting. The TBA’s leadership institute will be held in May, and the TBA Convention will be held in Chattanooga June 11-15. We decided to solicit leaders for the year beginning in June now so that an Executive Council slate could be in place as soon as possible.

Jan Walden, our CLE Chair, is planning our Annual Dispute Resolution Forum for September. Dates and details will be available soon. It will be an exciting program with some fresh ideas and considerable inter-sectional appeal. Meantime, David Taylor is looking into a road show for the very successful Art of Arbitration seminar.

The Council agreed to "go public" with our web page.

Reminder: If you are interested in being an active member of the Section’s leadership group starting for the upcoming fiscal year, please contact our Chair, David Taylor, at dtaylor@bccb.com or by telephone at 615-252-2396 by MARCH 8th.

DANGERS OF USING PARTY-APPOINTED ARBITRATOR

Paul Lurie* alerts us to a case on the dangers of using party appointed arbitrators on mixed panels and a court's reluctance to overturn their awards. Delta Mine Holding Co., et al v. AFC Coal Properties, Inc., (8th Cir., No. 00-3646, decided 12/28/01). The 8th Circuit refused to vacate the award, notwithstanding the vacature by the District Court based on violation of the AAA Code of Ethics. A copy of the case is available at http://caselaw.lp.findlaw.com/data2/circs/8th/003646p.pdf.

The arbitrator selected by Delta participated as a consultant in witness preparation and strategy sessions; failed to disclose his substantial and on-going relationship with Delta Mines and its attorneys; and disclosed to Delta the on-going panel discussions and "how to sway the arbitrators to rule in Delta’s favor.

The District Court concluded that the arbitrator violated the AAA Code of Ethics and that the misconduct justified vacating the awards under § 10 (a) of the Federal Arbitration Act. That section provides authority for vacating an award procured by corruption, fraud or undue means; for evident partiality or corruption in the arbitrators; and where the arbitrators are guilty of any other misbehavior by which the rights of any party have been prejudiced.

The Circuit Court found that AFC Coal had waived the evident partiality objection by not raising it with the arbitrators; the parties had agreed on using partial arbitrators; and had failed to show any prejudicial impact on the arbitration awards.

*Note: Paul Lurie, a Partner with Schiff, Hardin & Waite, a Chicago firm with offices in N. Y., D. C. and Ireland, is a noted AAA mediator and Large Complex Case arbitrator. He sends e-mails to a list of official American Arbitration Association neutrals. He has been kind enough to allow us to include his materials in our newsletter.

P. S. The current issue of Dispute Resolution Magazine (Fall 2001) at page 27 has a related article, "Can tripartite arbitration panels reach fair results?" by Stephen C. Rogers. The issue also includes several articles on mediator credentialing.

YOU CAN’T ALWAYS GET WHAT YOU WANT

Paul Lurie writes: "We know that some people (and agencies) with a love/ hate view of arbitration, try to write appellate reviews into their arbitration agreements. Here is one court that says you can't do it. I always thought this approach, even if valid, gave false hope that arbitrator's decisions would in fact be reviewed de novo and reversed. The Court did not rely on anything unique in California jurisprudence."

CROWELL v. DOWNEY COMMUNITY HOSP. FOUND., No. B148291 (Cal. 2d App. Dist. January 28, 2002). Parties to an arbitration agreement may not agree that an arbitration award is subject to judicial review to determine whether the award is supported by law and substantial evidence. To read the full text of this opinion, go to:
[PDF File] http://caselaw.lp.findlaw.com/data2/californiastatecases/B148291.pdf.

CIRCUIT CITY V. ADAMS ON REMAND: 9th CIRCUIT RULES ARBITRATION AGREEMENT UNCONSCIONABLE UNDER CALIFORNIA CONTRACT LAW PRINCIPLES.

In the October 2001 issue of this newsletter, Joe Manuel wrote an article, "Arbitration Clauses – In The Afterglow Of Circuit City Stores." He suggested dusting off the Buraczynski Test (Buraczynski v. Eyring, 919 S.W. 2d 314 (Tenn. 1996) and applying it to employment arbitrations to test whether or not the agreement to arbitrate was a prohibited contract of adhesion or "unconscionable." That was a med mal case. "The Buraczynski factors," he wrote, "serve as a useful yardstick to evaluate the validity of any arbitration clause, to wit:

1. Is it a contract of adhesion?
2. If so, are the terms unconscionable or oppressive such as to render them unenforceable?
3. Is the arbitration clause hidden in the midst of a standard admission contract or is it in a separate document?
4. Does the arbitration procedure give an unfair advantage (such as limiting arbitrators to physicians specializing in obstetrics)?
5. Is the arbitration clause conspicuous and does it advise that by its execution, the patient gives up the right to a trial by a court or jury?
6. Is there a period of time wherein the patient can revoke the arbitration agreement?
7. Does the arbitration provision attempt to reduce the duty of care owed by the physician to the patient, limit liability for the breach of duty of care, or does it only shift the forum for the resolution of any dispute?"

AIDING NEGOTIATION BY BREAKING DOWN BARRIERS

Bennett G. Picker wrote an article for CPR that is reprinted at www.mediate.com, entitled : "How Best to Aid Negotiation by Breaking Down Barriers." It’s another take on the value-added of mediation that identifies the more frequent barriers to resolution by direct and unassisted negotiations and that suggests ways to overcome them. I also recommend Prof. Baruch-Bush’s article, "What Do We Need a Mediator For?": Mediation’s "Value-Added" for Negotiators, at 12 Ohio St. J. on Disp. Resol. 1 (1996).

Among Picker’s points (and some of my thoughts on his points) are:

1. Counsel and parties have selective perception of the strengths and weaknesses of their positions. A mediator is an agent of reality.
2. Parties have unrealistic expectancies in distributive bargaining and fail to get to real-world settlement ranges. They often have a knee jerk reaction even t0 credible offers. The mediator can help them move toward fair settlement values, non-insulting offers and counter-offers, and reasonable outcomes.
3. Failures to communicate about settlement are common, if for no other reason than to dispel perceptions that it is a sign of weakness to make an offer. The mediator can take a proposal and float it as his or her own.
4. There are information gaps that, with the consent of the parties, the mediator can bridge, and, almost inevitably, there is new information for each side in joint sessions.
5. Insufficient focus upon underlying interests. The mediator can change the game, particularly in cases where there might be a continuing relationship, from distributive to integrative bargaining, in whole, or, in most cases, in part.
6. Misaligned client interests. Picker’s point here is that obstacles to agreement may occur because of internal client disagreements, e. g., between a corporate office and an operating division. The mediator’s job is to recognize this and to try to conduct an "intramural" mediation as a first step.
7. Disconnects between attorney and client. The mediator often has the job of giving the bad news to the client because of the client’s inability to hear the attorney or the attorney’s overly optimistic initial assessment. Some of my most satisfying mediations occur when the attorneys have given realistic assessments to their clients and when the outcome meets or exceeds the clients’ expectations.
8. Anger and embarrassment and other emotions may interfere with resolution. Venting, affective listening, restatement and other techniques are used by mediators to move the emotion-laden parties away from their polarization and polemics.
9. Misbehavior of counsel and parties in direct negotiations can be tempered in mediation. Some parties and counsel do not know how to negotiate; the mediator can help, for example, by helping them to find a first credible offer and anchoring their zone of agreement.
10. Inability to break impasse. The mediator should be able to recognize it as posturing or as real, and then using other approaches to overcome it if posturing and, if real, test it by offering a "Silver Bullet" resolution; by putting best-and-final offers side by side; or by calculating fair settlement values and determining exactly where the parties are apart.

A GOOD MAN AIN’T HARD TO FIND

Our Section Chair, David Taylor, will Chair the Nashville Bar Association’s Dispute Resolution Committee this year. Incoming Nashville Bar President, Barbara Holmes, made a good choice, as we’ll all agree.

TENNESSEE VALLEY MEDIATION ASSOCIATION

The Tennessee Valley Mediation Association has begun its operations. It’s mission is to promote mediation and to foster high quality mediation in the greater Knoxville area. For further information, contact Grayfred Gray at grayfred.gray@juno.com or the President, Dr. Bruce Seidner at bseidner@earthlink.net. The first meeting is scheduled for Monday, March 18th at 7 p. m. at a time and place to be determined.

KNOXVILLE COMMUNITY MEDIATION CENTER

Sam Fowler, Of Counsel to Wagner, Myers & Sanger is Chair of the Knoxville Community Mediation Center and liaison to the Knoxville Bar Association. The Knoxville CMC was very helpful to the Nashville Bar Association in setting up its Nashville Conflict Resolution Center. He tells me that the General Sessions judges in Knoxville are now automatically sending cases where neither party has an attorney out to the CMC mediators at the beginning of the docket call. More and more lawyers are also discovering the value of a free mediation, he says.

Knoxville’s CMC is healthy and growing. They have over 90 trained mediators which
includes 10 lawyers. Since inception they have court-approved settlements
in over 1,000 cases in General Sessions Court and 800 in Juvenile Court.
They also administer the Parenting Plan in Domestic Relations Court, scheduling the mediation sessions with Rule 31 mediators. They have expanded the program which was developed in Knox County by the University of Tennessee Law School and
the KBA into Blount and Jefferson Counties and are talking with judges
in other nearby counties about expanding into their courts.

Knoxville teaches peer mediation in several high schools and are gradually
expanding mediation into other areas such as criminal court, community
disputes and police problems that don't amount to a crime.

They are seeking to build a mediation center that has a strong education
component to teach how to mediate, a strong group of mediators who
mediate at least once a week and the financial resources to support the
organization. In their court work they are looking for cases where the
parties do not have the financial resources to pay a lawyer or if there
are lawyers, the case is just not worth trying. Outside of court, there
are all kinds of disputes that can be resolved by mediation if it can be
done with little or no cost to the participants, Fowler says.

A Parenting Plan for All???

It may not be possible to have a uniform parenting plan form for all the Courts in Tennessee. Nonetheless, I consulted various sources available to me, including plan forms provided by the ADR Commission on its website, Knoxville and Nashville versions, and those from other states and individuals. I then drafted a proposed uniform document. Note that T. C. A. § 36-6-406 (g) provides: "Forms used by parties as parenting plans or adopted by the court for their use, shall conform to all substantive language requirements established by the administrative office of the courts at such time as parenting plan forms are promulgated and approved by that office." Please send me your comments, and I'll share them with our readership, without attribution. Send to Ken Jackson at kjackson@nealharwell.com

In cases involving domestic violence, there are several recommended changes.

o Define boundaries so that it works whether or not the parents can work with each other.
o Child Support

• No direct pay – use wage assignment, automatic bank transfer, or payment through the court.
• Look at every financial item on the parenting plan, e.g., medical insurance, unreimbursed medical expenses, and create a way to avoid direct contact.

o Children

• Avoid or minimize joint decision-making.
• Supervised visitations should be supervised by someone other than the victim.
• Watch for the potential for joint participation in children’s events, and avoid or minimize. According to a report written by Dr. Daniel Sanders of the University of Michigan, and sponsored by the Violence Against Women office of the U. S. Department of Justice, visitation guidelines should be based on the following general principles:

• Contact between parent and child should be structured so that the child’s exposure to parental conflict is limited.
• Transitions from one parent to another should be infrequent in cases of on-going conflict and reasonable fear of violence.
• Unsupervised visitation should be allowed only after the perpetrator completes a special program for batterers.

o Delegate or Rotate, e.g., father does clothes shopping, mother arranges for transportation to extracurricular activities; they switch every x months.
o Contingencies

• What happens if the agreement needs revision?
• What happens if the child is ill when due to be with other parent?
• How long does a parent have to wait at an exchange location?

o Knox County’s 4th Circuit has a tobacco smoke clause.
o Williamson County provides that the (primary) residential parent pays up to $250 per year in unreimbursed medical and dental/orthodontic expense, and the balance is shared equally by both parents.
o Costs of extracurricular activities are addressed differently in some plans.

________________________________________________________________

2.10 TRANSPORTATION ARRANGEMENTS.

Transportation arrangements for the child(ren) between parents shall be as follows:
______________________________________________________________
______________________________________________________________

Transportation costs shall be [ ] paid equally OR [ ] paid by [ ] Mother [ ] Father.


2.11 DESIGNATION OF CUSTODIAN.

The children named in this parenting plan are scheduled to reside the majority of the time with the [ ] mother [ ] father. This parent is designated the custodian of the child(ren) solely for purposes of all other state and federal statutes which require a designation or determination of custody. THIS DESIGNATION SHALL NOT AFFECT EITHER PARENT’S RIGHTS AND RESPONSIBILITIES UNDER THIS PARENTING PLAN.

2.12 OTHER:

________________________________________________________________

________________________________________________________________

III. CHILD SUPPORT PER TENNESSEE GUIDELINES OR DEVIATIONS

3.1 FINANCIAL SUPPORT.

[ ] The [ ] Mother [ ] Father will pay child support, in accordance with the Tennessee Child Support Guidelines, in the amount of $______________ per ____week; ____month; ____ twice per month; or _____every two weeks, beginning the ________ day of ____________________ 20__ .

Deviations:
________________________________________________________________

________________________________________________________________

Payment shall be made
_____ Directly to the other parent
_____ To the Central Child Support Receiving Unit, P. O. Box 305200, Nashville, TN 37229, and sent to the other parent at __________________________________________
_____ Direct deposit to the other parent at ____________________ Bank.
This amount shall not be prorated unless otherwise specified.
_____ By Wage Assignment Order [Attach Order] to be presented by counsel to ______________________________________, the employer of the payor, for on-going child support payments.

[ ] Other provisions for financial support:
________________________________________________________________

________________________________________________________________

The parties affirmatively acknowledge that no action by either or both of them will be effective to reduce or modify child support after the due date of each payment. The parties further understand that Court approval must be obtained before child support can be reduced or modified, unless such payments are automatically reduced or terminated under the terms of this parenting plan.

3.2 TAX EXEMPTION.

[ ] The [ ] Mother [ ] Father will receive the tax exemption for the child(ren) [so long as the child support is current on the 15th day of January of each year] in [ ] each [ ] alternating years starting for the year ____________. Each party shall provide to the other, by or before April 15 of every year, a copy of their respective W-2 form and a copy of the first two pages of their tax return. Where a copy of the first two pages of the return is to be provided, that copy may be provided on or before August 15 if an extension is sought, in which case a copy of the request for extension will be furnished on or before April 15 of each year.

[ ] Other provisions regarding tax deduction:

____________________________________________________________

3.3 HEALTH INSURANCE.

[ ] The [ ] mother [ ] father will maintain medical/hospital insurance on the minor child(ren) and he/she shall provide proof of continuing coverage by February 15th of each year. If available to either parent through their employment, the
[ ] Mother
[ ] Father shall maintain dental/orthodontic insurance on the child(ren).
[ ] Uncovered medicals and dental/orthodontic care, including deductibles and co-payments, if any, will be
[ ] borne by the __________________
[ ] divided equally by the parties
[ ] _____________________________
[ ] Other: ________________________________________________
(This may include counseling)

3.4 LIFE INSURANCE.

[ ] The mother shall insure her own life in the minimum amount of $___________________, whole or term, which may not decrease in face amount during the minority of any child. The policy shall name the __ other parent OR the __ other parent as trustee of the funds to serve without bond or accounting as beneficiary for the support of the child(ren). The choice of the secondary beneficiary(ies) is up to the policy owner.

[ ] The father shall insure his own life in the minimum amount of $___________________, whole or term, which may not decrease in face amount during the minority of any child. The policy shall name the __ other parent OR the __ other parent as trustee of the funds to serve without bond or accounting as beneficiary for the support of the child(ren). The choice of the secondary beneficiary(ies) is up to the policy owner. The choice of the secondary beneficiary(ies) is up to the policy owner.

[ ] Other provisions regarding life insurance:
________________________________________________
________________________________________________

IV. DECISION MAKING

4.1 DAY TO DAY DECISIONS

Each parent shall make decisions regarding the day-to-day care and control of each child while the child is residing with that parent. Regardless of the allocation of decision making in this parenting plan, either parent may make emergency decisions affecting the health or safety of the children.

4.2 CHILD NURTURE AND DAILY NEEDS.

Mother and Father will behave with respect to each other and the child(ren) so as to provided a loving, stable, consistent and nurturing relationship with the child(ren) even though they are divorced. Mother and Father agree they will not speak badly of each other or the members of the family or friends of the other parent. They will encourage the child to continue to love and respect the other parent and to be comfortable in new family units.

When each child is in the care of a parent, that parent will insure the child will be properly groomed, fed and clothed. The child will be given proper physical, health and day care (if both parents work and the child is less than 12 years old).

4.3 MAJOR DECISIONS.

Major decisions regarding each child shall be made as follows:

Education decisions [ ] mother [ ] father [ ] joint
Non-emergency health care [ ] mother [ ] father [ ] joint
Religious upbringing [ ] mother [ ] father [ ] joint
Extra-curricular activities [ ] mother [ ] father [ ] joint
_______________________ [ ] mother [ ] father [ ] joint
_______________________ [ ] mother [ ] father [ ] joint

4.3.1 SPECIAL EDUCATION.

The following provision is made with respect to the child(ren) and any special or private schooling upon which the mother and father may agree: ______________ __________________________________________________________________ __________________________________________________________________

4.3.2 SCHOOLS TO BE ATTENDED.

The child(ren) are in the following grades and schools:

Child 1. ___________________ ____________ ____________________
[Child’s name] [Grade] [School]
Child 2. ___________________ _________ _________________________
[Child’s name] [Grade] [School]
Child 3. ___________________ _________ _________________________
[Child’s name] [Grade] [School]
Child 4. ___________________ _________ _________________________
[Child’s name] [Grade] [School]

Child 1 will continue to attend ___________________________ [elementary school] until the ______ grade, at which time Child 1 will then attend __________________ __________________ [middle school] and _________________________________ [high school] in the feeder system of ____________________________ [elementary school], since it is recognized that most of Child 1’s classmates will also do so.

Child 2 will continue to attend ___________________________ [elementary school] until the ______ grade, at which time Child 2 will then attend __________________ __________________ [middle school] and _________________________________ [high school] in the feeder system of ____________________________ [elementary school], since it is recognized that most of Child 2’s classmates will also do so.

Child 3 will continue to attend ___________________________ [elementary school] until the ______ grade, at which time Child 3 will then attend __________________ __________________ [middle school] and _________________________________ [high school] in the feeder system of ____________________________ [elementary school], since it is recognized that most of Child 3’s classmates will also do so.

Child 4 will continue to attend ___________________________ [elementary school] until the ______ grade, at which time Child 4 will then attend __________________ __________________ [middle school] and _________________________________ [high school] in the feeder system of ____________________________ [elementary school], since it is recognized that most of Child 4’s classmates will also do so.

In the event [ ] Mother [ ] Father moves from the neighborhood of the feeder system in which the child(ren) presently are educated, then the child(ren) will be enrolled in the Middle School and High School of the public school feeder system for that neighborhood. If [ ] Mother [ ] Father plans to move, he/she will consult with [ ] Mother [ ] Father as soon as possible after any such decision is considered but in any event at least ninety(90) days before any such decision to move is to be implemented. Upon graduation from High School, Mother and Father will consult with respect to the college education of the children. In the event that either parent will desire that the children attend college and if the other parent is not willing to contribute to the expense of college education, then the parent desiring the college education will have the decision making authority with respect thereto. In the event that both parents contribute to the college education, then decisions with respect to that education will be shared, and the parents will consult on all major aspects of that education. Education decisions not covered herein will be made by [ ] Mother [ ] Father after consultation.

4.3.3 EXTRACURRICULAR ACTIVITIES.

Both parents have encouraged the child(ren) to engage in extracurricular activities, and to that end they are willing to share in the expense of, and will jointly consult with respect to, the following: __________________________________________________________________________________________________________________________ _________________________________________________________________. To the extent that one parent is not willing to participate in the funding of any extracurricular activity, then the other parent will have the sole decision-making authority with respect to that activity, and the non-contributing parent will not object. There will be no comment made with respect to financial non-contribution of one parent in the provision of extracurricular activities by the other. Neither parent will engage in the provision of extracurricular activities for the child(ren) which will result in the exclusion, whether intentional or unintentional, of the other. As the child(ren) enter teenage years, the child(ren) will be permitted to attend social functions sponsored by their school or church as well as private parties, provided both parents are satisfied that alcohol and drugs are not available at those functions. Both parents will consult with respect to any such function and will, where possible, reach a joint decision on whether the child(ren) may attend. In the event that there is any disagreement with respect to the attendance at such a function or if there is an extracurricular matter not covered hereunder, [ ] Mother [ ] Father will make the decision.

4.3.4 RELIGIOUS UPBRINGING.

The child(ren) will attend _______________________ [place of worship], and the parents will continue, where possible, to attend with the child(ren). Before any change in the religious affiliation of the child(ren), the parents will consult in advance and attempt to reach an agreement with respect to any such change. In the event the parents are unable to agree with respect to religious upbringing, [ ] Mother [ ] Father will make the decision.

4.3.5 MISCELLANEOUS.

The parents will consult regarding providing a vehicle to any child after the child’s 16th birthday. If the parents are unable to reach an agreement as to the type or cost of any vehicle, [ ] Mother [ ] Father will make the decision.

4.4 PRIVATE SCHOOL AND COLLEGE (Optional).

The parties agree as follows regarding private school [elementary and high school] and college or vocational training after high school.
____________________________________________________________
____________________________________________________________

4.5 INTERPERSONAL RELATIONSHIPS.

Both Father and Mother will encourage and foster relationships of each child with other children, family members and, where appropriate, other persons, to insure each child has a well-rounded upbringing. In addition, the parents will expose each child as to many of the following activities as they can:

____________________________________________________________
____________________________________________________________

4.6 OTHER PROVISIONS.

The following special provisions apply to decision making:

____________________________________________________________
____________________________________________________________

4.7 RESTRICTIONS IN DECISION MAKING.

[ ] Does not apply.

[ ] Sole decision making shall be ordered to the [ ] Mother [ ] Father for the following reasons:
_________________________________________________________________

[ ] A limitation on the other parent’s decision-making authority is mandated by TCA § 36-6-406 .

[ ] Both parents are opposed to mutual decision making.

[ ] One parent is opposed to mutual decision making, and such opposition is reasonably based on the following criteria:

[ ] The existence of a limitation under TCA § 36-6-406;

[ ] The history of participation of each parent in decision making in each of the areas in TCA § 36-6-406;

[ ] Whether the parents have demonstrated ability and desire to cooperate with one another in decision making in each of the areas in TCA § 36-6-406; and

[ ] The parents’ geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.

V. DISPUTE RESOLUTION

[ ] Disputes between the parties, other than the child support disputes, shall be submitted to:

[ ] Counseling by _______________________________________--____, or

[ ] Mediation by ____________________________________________, or

[ ] Arbitration by ___________________________________________, or

[ ] Court Process due to Order of Protection or Restrictions.

The cost of this process shall be allocated between the parties as follows:

[ ] _______% Mother _______ % Father.

[ ] based on each party’s proportional share of income from the child support guidelines.

[ ] as determined in the dispute resolution process or by the Court.

The counseling, mediation or arbitration process shall be commenced by notifying the other party by [ ] written request [ ] certified mail [ ] other: ______________________________________________________________

In the dispute resolution process:

(a) Preference shall be given to carrying out this Parenting Plan.

(b) Unless an emergency exists, the parents shall use the designated process to resolve disputes relating to implementation of the plan, except those related to financial support.

(c) A written record shall be prepared of any agreement reached in counseling or mediation and of each arbitration award and shall be provided to each party.

(d) If the court finds that a parent has used or frustrated the dispute resolution process without good reason, the court shall award attorneys’ fees and financial sanctions to the other parent.

(e) The parties have the right of review from the dispute resolution process to the court.

[ ] No dispute resolution process, except court action, shall be ordered, because [ ] a limiting factor under TCA § 36-6-108 applies or [ ] one parent is unable to afford the cost of the proposed dispute resolution process.

VI. STANDARD PARENTING RIGHTS

Pursuant to TCA § 36-6-101(a), unless otherwise provided therein, both parents are entitled to the following rights:

1. unimpeded telephone conversations with the child at least twice each week at reasonable times and for a reasonable duration;

2. sending mail to the child which the custodial parent will not open and will not censor;

3. receiving notice and relevant information as soon as practical (but not more than 24 hours) in the event of hospitalization, major illness, or death of the child;

4. receiving, directly from the school, copies of the child’s report cards, attendance records, teacher’s names, class schedules, standardized test scores, and other records which are customarily made available to parents. A written request must be made to the school with a current mailing address and payment must be made for the reasonable cost of duplicating and mailing these records;

5. receiving, directly from the child’s physician and other health care providers, copies of the child’s medical records. A written request must be made to the health care provider with a current mailing address and payment must be made for the reasonable cost of duplicating and mailing these records;

6. to be free of derogatory remarks made about the noncustodial parent and his or her family by the custodial parent to the child or in the child’s presence.

In addition, both parents agree that they shall:

7. whenever possible, give forty-eight (48) hours notice to the other parent of all extracurricular activities, and the opportunity to participate or observe, including, but not limited to, the following:

a. School activities
b. Athletic activities
c. Church activities; and
d. Other activities as to which parental participation or observation would be appropriate.

8. if one parent leaves the state with the minor child(ren) for more than two (2) days, provide the other parent with an itinerary with telephone numbers to use in case of an emergency.

9. have access and participation in education, including the right of access to the minor child(ren) for lunch and other activities on the same basis that is provided to all parents, provided the participation or access is reasonable and does not interfere with day-to-day operations or with the child’s educational performance.

VII. OTHER PROVISIONS

[ ] There are no other provisions.

[ ] _________________________________________________________

[ ] Either parent shall have the right to apply to the Court for relief in the event mediation is unsuccessful.


VIII. DECLARATION FOR PROPOSED PARENTING PLAN

[ ] Does not apply.
[ ] (Only sign if this is a proposed parenting plan.) I declare under penalty of perjury under the laws of the State of Tennessee that this plan has been proposed in good faith, that it is in the child(ren)’s best interest(s), and that my statements of income and my statements herein are true and correct.


___________________________________ ______________________
Mother Date and Place of Signature


___________________________________ _______________________

Father Date and Place of Signature

IX. ORDER BY THE COURT

It is ORDERED, ADJUDGED AND DECREED that the Parenting Plan set forth above is adopted and approved as an order of this court.

WARNING: Violation of residential provisions of this order with actual knowledge of its terms is punishable by contempt of court and may be a criminal offense under TCA § 39-13-306. Violation of this order may subject a violator to arrest.

When mutual decision making is designated but cannot be achieved, the parties shall make a good faith effort to resolve the issue through the dispute resolution process.

If a parent fails to comply with a provision of this plan, the other parent’s obligations under this plan are not affected.

Dated: ______________________

_________________________________
Judge

Presented by:

____________________________________
Signature

____________________________________
Print or Type Name

____________________________________
Signature

____________________________________
Print or Type Name

Mediation Services provided by:
______________________________
(Name)
______________________________

_____________________________
(Address)
______________________________
(Phone)

If you have questions or need information about TBA's Dispute Resolution Section, you may contact: Lynn C. Pointer, Sections/Committees Coordinator, Tennessee Bar Association, 221 Fourth Avenue North. Suite 400, Nashville, TN 37219. Email: lpointer@tnbar.org
Phone: (615) 383-7421 and Fax: (615) 297-8058.