TBA Law Blog

Posted by: Christy Gibson on Aug 20, 2015

by Jackie Kittrell and Steve Shields

The Tennessee Supreme Court’s Access to Justice Commission was created in 2009 under the authority of TSC Rule 50 and has devoted itself and its advisory committees to helping people overcome the barriers to our justice system to resolve their legal problems[1].  Lack of access to justice has been primarily defined as a lack of affordable legal representation in court, so the focus is on how to improve the ability of self-represented litigants to move through the adversarial system.  This year, the Commission is exploring, through its Mediation Advisory Committee chaired by Gail Ashworth, ways in which the self-represented disputants can access justice by using appropriate mediation services.  Most of the Committee’s work is done by conference call each month or two, with Committee members agreeing to lead various projects approved by the whole[2].

Mediation helps people access the courts in Tennessee by helping them slow down, sit down, and engage in meaningful settlement talks with the person or entity on the other side of the dispute, whether or not attorneys are involved.  An increasing number of pro se cases are coming to General Sessions Courts, especially small claims in Civil Sessions Court and never-married parenting cases in Juvenile Court. In some counties, there are Community Mediation Centers to provide volunteer mediators to help pro se parties on the day of court or through an administrative process of screening and scheduling dueling parties.  Nashville, Knoxville, and a few rural counties can use these nonprofit services, either for free or on a sliding scale, although its unlikely any mediation center could completely fill this access gap.  It goes without saying that most counties in Tennessee do not have access to CMCs and their well trained staff and volunteer mediators, so must rely on private Rule 31 mediators to make themselves available for pro bono mediation[3].   

These county-funded Sessions courts deal with many, many unrepresented litigants, either because the amount in dispute is not enough to warrant hiring an attorney, or because the parties simply can’t afford any legal help and don’t qualify for legal aid.  (Unrepresented domestic disputants are widely seen as the most underserved of all pro se litigants, with the most visible docket jams and problematic legal consequences.) The court dockets can be large, with countless delays and stressed out parties.  Mediation, if done by well-trained mediators, and in such a way to assure safety and self-determination, is a huge benefit to any court. Docket management alone would make such a service worth its weight in gold; when client satisfaction and compliance with the agreement is considered, it’s worth its weight in platinum (titanium?).  The parties feel heard; they are given the safety, space and structure they need to make their own agreements; and all known outcome studies show that, at least with parenting disputes, the parties have higher compliance (and more child support payments) when following their own agreements when compared to following those orders resulting from adversarial litigation.

In 2014, Stephen Shields, an attorney mediator at Jackson, Shields, Yeiser & Holt in Memphis, and adjunct faculty at Memphis School of Law, presented an idea to the Tennessee General Sessions Judges Conference, asking if any judge would be interested in a “Mediator of the Day” program in their civil sessions court docket, modeled on a successful pro bono program developed by the Memphis Bar Association, and inspired by several CMC programs across the state.   In the Memphis model, Rule 31 mediators make themselves available for pro bono mediation on a specific day, go to the courthouse and wait for a case to be assigned.  The mediator then screens the parties, mediates the disputes, and memorializes the resulting agreement, which is signed by the parties.  The Memphis Bar Association DR Section provides training and mentoring (and allows non-attorney mediators to be members of the Section). 

The county Sessions Judges were interested and enthused about the possibilities, and Steve Shields got an immediate “yes” from eight counties across all three grand divisions.  The Mediation Committee approved further work.  Professor Becky Jacobs, the director of the Mediation Clinic at University of Tennessee College of Law in Knoxville, and Jackie Kittrell, the Executive Director of Community Mediation Center, also in Knoxville, both signed on to put together an action plan and see what might work in East Tennessee.  They both have experience in Knox County, training and supervising law students and community volunteers to mediate in county courts, a program that has existed for 20 years, with close to 800 referrals flowing through CMC each year.  Judge Dwight Stokes, one of two Sessions judges in Sevier County, and a leader in this effort to provide access to justice in Tennessee, is working with the Committee to explore what might work in his rural county court, with both the parenting/visitation docket and the civil small claims docket.

Linda Warren Seely, the Director of Pro Bono Projects at Memphis Area Legal Services (MALSI), has been involved in starting a mediator of the day program in Shelby County Juvenile Court, and will also be involved in recruitment of volunteer mediators.  She will be involved in helping train mediators on issues important in domestic violence screening.

Several Committee members will be involved in a short training for mediators who want to do pro bono work involving pro se parties, covering ethical and practical issues involved in handling those type of cases, such as intake and screening for domestic violence and need for legal advice; determining capacity to mediate; balancing power; use of forms and the ethics of scribing.

Given the differences in mediation resources in rural and urban counties, we will clearly need more than one model.  Mediators from across the state have expressed a willingness to do pro bono. There have been meetings with several Sessions judges who would like to have a list of mediators who could do pro bono work, and some good ideas have been generated and some mediations have been done so we can all see what might work best.  Some examples: 

·      Mediators could individually contact judges or court staff to begin talking about what the highest priority of need is, and to offer their service;

·      Mediators could approach existing volunteer mediation programs[4] in their region to volunteer, or to seek help with training and mentoring;

·      Bar associations could be involved, as in Memphis, helping organize leadership and recruitment;

·      The court and mediators could organize a “mediator of the day” or “docket day” event where on a specific day, or a sequence of days, mediators would know to come to the courthouse and get ready to mediate whatever cases the judge sent to them.

[1] The Access to Justice Commission 2012 Strategic Plan is available online on the www.justiceforalltn.com website, on the side menu, and here is a video explaining the Access to Justice Initiative: www.justiceforalltn.com/i-canhelp/video.   The Commission has overseen a variety of projects, from designing an online legal advice site, staffed by volunteer attorneys, to lists of resources by county, including a list of community mediation centers, to “street law” programs to teach high school students about the law and the legal system.

[2] The Commission is advised by several other committees, including those dealing with Pro Se/Forms, Pro Bono, Disability & Language Barriers, and Faith-based Initiatives, among others.

[3] Rule 31, Section 18 (d) Pro Bono Service. As a condition of continued listing, each Rule 31 Mediator must be available [emphasis added] to conduct three pro bono mediations per year, not to exceed 20 total hours. At the initiation of a mediation, the court may, upon a showing by one or more parties of an inability to pay, direct that the Rule 31 Mediator serve without pay. No Rule 31 Mediator will be required to conduct more than three pro bono proceedings or serve pro bono for more than 20 hours in any continuous 12-month period. Appendix A, Section 14. Advancement of Dispute Resolution, (a) Pro Bono Service. Neutrals 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 Neutral should provide dispute resolution services pro bono or at a reduced rate of compensation whenever appropriate. [emphasis added]

[4] Besides the programs and community mediation centers mentioned in this article, there is a list of programs funded by the AOC each year on the www.tncourts.gov site.  Visit this page, http://tncourts.gov/programs/mediation/resources-public, and then click through to the pdf list of state-funded mediation programs.