Ethics in Family Law Mediation

This column was updated April 25, 2019 – after its original publication, to reflect a change in the location of the forms.

Ethics for lawyers is always an important topic. Ethics in mediation, particularly in divorce cases, is an area that should be a strong focus of any family law practice, if for no other reason than that the vast majority of cases are resolved through mediation between the parties. Mediation is required by statute in divorce and separate maintenance cases by Tenn. Code Ann. Section 36-4-130 with certain exceptions.

While mediation is more informal than litigation by design, mediation may also place the attorneys in a position where they need to be vigilant about their ethical obligations to their clients as well as the other side in the case. In addition to the attorneys for the parties, mediation generally involves a third, neutral practitioner, and that person also has ethical obligations that must be met, both to the parties and to the system in general. While the ethical obligations of one side’s attorney may be relatively clear cut, the mediator may be put in a more awkward position on occasion and their obligations are not as clear.

The Tennessee Supreme Court issued an order on Oct. 3, 2018, which was composed after input from a multitude of sources. The order enacted significant updates, amendments and additions to Tennessee Supreme Court Rule 31, which governs mediation practice and mediators in Tennessee.** Many of these went into effect in November 2018  and others are to go into effect on Nov. 1, 2019. Part of this article will address the most pertinent of those changes for the practice of family law. Additionally, a review of specific and frequently occurring ethical issues for mediators can only serve to assist a family law practitioner and will be covered as well.

Requirements to Know in Advance

The Supreme Court has included requirements for lawyers to follow before the actual mediation begins. In order to serve as a mediator or to know what to expect from a lawyer serving as your mediator, a quick review of these requirements is helpful. The most general and expansive list of requirements for a mediator is in Rule 8, Section 2.4 of the Tennessee Supreme Court, wherein the qualifications of a mediator are discussed and obligations laid out. In order to serve as a mediator, the lawyer shall be competent in the area of law, shall be free from conflicts of interest, shall communicate with the parties and their attorneys about his/her qualifications to serve as a mediator and, if the mediation is being conducted pursuant to Rule 31, that the attorney is qualified under and will comply with all the requirements that are espoused in Rule 31.1 If a lawyer is so qualified and conducts mediation, the lawyer shall promote mutual respect among the parties, treat them both fairly, make sure that they understand the proceeding and the rules, treat information disclosed with confidentiality and seek nothing of value from either party other than reasonable compensation.2 Lastly, if the lawyer feels that he/she cannot comply with the rules because of conflict, or if either party requests, the lawyer shall withdraw as the mediator.3

Other sources serve to guide the mediation process as well. Specifically in reference to divorce mediation, the Tennessee Code also has certain provisions, particularly those designed to protect the confidentiality of information disclosed during the mediation process. A mediator may only disclose confidential information revealed in mediation under a few, limited circumstances such as when an allegation of child abuse has been made, or if there is a legal action by one of the parties against the mediator in relation to
the mediation.4

In Rule 8, there are several cross-references to Rule 31, which is specifically designed to govern mediation and mediators. Many of the general requirements that are discussed in Rule 8 are further detailed in Rule 31 as well as the procedures for selecting a mediator, reporting to the court, disputes or disciplinary complaints against a mediator and other general information about how a mediation should proceed.

Protections Strengthened

One of the major additions to Rule 31 is that the protections for third-party mediators from disclosure of confidential information have been strengthened. Third-party mediators may not be called as witnesses or compelled to disclose any information that arises during the course of the mediation and such information shall be treated as confidential and privileged for litigation purposes.5 Though the prior rule did offer some protection, this makes explicit that mediators cannot be required to disclose information that the parties revealed during the course of the negotiations, which, of course, permits more freedom and candor on the part of all participants. Further, a mediator may not be called as a witness to any enforcement action in any type of post-settlement proceeding, further reinforcing the purpose of the modified rule.6

An additional amendment to the Rule makes the work of the mediators privileged rather than merely noting that they are serving a judicial function, adding a further layer of protection
to the mediator that then facilitates more effective mediation and resolution of issues.7

Some Forms No Longer in Use

The Supreme Court order also elected to strike several forms that were previously used, or permitted to be used, by courts when ordering mediation and took reference to these particular items out of Rule 31, Section 2. Form orders for non-binding arbitration, for a case evaluation, for a mini-trial, and for a summary jury trial were all stricken from recommended use by the Supreme Court in this revision.8 If any of those forms were in common use in your jurisdiction, be aware that they are no longer recommended for use when ordering dispute resolution related proceedings. A reciprocal, major addition to the Rules, though it does not specifically implicate divorce mediations, is Rule 31A, which was added in its entirety and now governs Alternative Dispute Resolution proceedings and incorporates the requirements from the now stricken orders, and definitions from Rule 31 Section 2, into a separately codified rule.9

Other Changes

Another small but notable addition to Rule 31 is a paragraph where it makes clear that a mediator shall refrain from even giving the appearance that he/she is an advocate for one or both of the parties and shall explicitly make clear to both parties that he/she is not their advocate.10

Also, an important change regarding the preparation of the final settlement documents was implemented. Initially, the proposed change regarding the preparation of the final settlement documents submitted to the Tennessee Supreme Court prevented a neutral from preparing legal pleadings, such as a Marital Dissolution Agreement and/or Permanent Parenting Plan, for filing with the court.

However, the change adopted on Oct. 3 removed specific reference to a Marital Dissolution Agreement and/or Permanent Parenting Plan and included additional language that a neutral may assist parties in filling out the Parenting Plan Forms maintained by the Administrative Office of the Courts pursuant to Tenn. Code Ann. Section 36-6-404 and the Marital Dissolution Agreement as approved by the Tennessee Supreme Court under Tenn. Sup. Ct. R. 52 or any other forms approved under Tenn. Sup. Ct. R. 52. On Oct. 8, 2018, the Tennessee Supreme Court issued a correction to the adopted Rule 31, Appendix A – Section 10(a)(1). This correction completely removed the language preventing a neutral from preparing legal pleadings for filing with the court but did not remove the language allowing a neutral to assist parties in filling out Parenting Plan Forms maintained by the Administrative Office of the Courts and the Marital Dissolution Agreement and other forms approved by the Tennessee Supreme Court under Tenn. Sup. Ct. R. 52.11

Many of these changes reinforce existing instructions that were already contained within Rule 31 as well as other regulations throughout the Supreme Court Rules and the Tennessee Code. But these modifications, and their implications, are important to take into account as a family law practitioner. Ethics, particularly the ethical obligations of a mediator, are critical to the divorce process as so many cases are resolved through mediation. Obviously, the mediator is not an advocate for either party, but that presents its own set of issues that a mediator should be cognizant of when conducting a mediation. These modifications serve to strengthen the protections for a mediator, but also reinforce the need for confidentiality and for neutrality.


Notes

** Since the publication of this column, the Journal was informed by the Tennessee Supreme Court that several of the amended forms are no longer housed within Rule 31. They are now under the newly codified Rule 31A, governing other types of alternative dispute resolution besides mediation. The forms are still available at https://tncourts.gov. To access them, hover over “Forms and Publications” in the red bar at the top of the screen, click on “Court Forms,” and then click on “Mediation Forms.” The following forms can be found in the “Rule 31A – Alternative Dispute Resolution Forms” section; Form Agreed Order for Non-Binding Arbitration, Form Order for Case Evaluation, Form Agreed Order for Summary Jury Trial, and Form Agreed Order for Minitrial. The direct link is https://www.tncourts.gov/node/342.

1. Tennessee Supreme Court Rule 8, Section 2.4(b).
2. Tennessee Supreme Court Rule 8, Section 2.4(c).
3. Tennessee Supreme Court Rule 8, Section 2.4(d).
4. Tenn. Code Ann. § 36-4-130.
5. Tennessee Supreme Court Rule 31, Section 7.
6. Tennessee Supreme Court Rule 31, Section 10.
7. Tennessee Supreme Court Rule 31, Section 12.
8. Tennessee Supreme Court Rule 31, Appendix B, C, D, and E.
9. Tennessee Supreme Court Rule 31A.
10. Tennessee Supreme Court Rule 31, Appendix A – Section 6(b)(6).
11. Tennessee Supreme Court Rule 31, Appendix A – Section 10(a)(1).

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is board certified as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.

 

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