Alternative Dispute Resolution (Mediation)

U.S. Bankruptcy Court for the Eastern District of Tennessee Local Rule on Mediation:

(a) Referral for Mediation.

The court may, in the judge's discretion and with or without the consent of the parties, refer any adversary proceeding or contested matter for Mediation. Any Mediation Reference may be withdrawn by the Presiding Judge upon a determination for any reason that the matter referred is not suitable for Mediation. Once an order has been entered directing that the parties participate in Mediation, the parties will be required to do so unless the court enters an order withdrawing the Mediation Reference.

(b) Definitions

For purposes of this rule:

  (1) "District Court" means the United States District Court for the Eastern District of Tennessee.
  (2) "Mediator" means an individual approved to serve as mediator in an adversary proceeding or contested matter in accordance with paragraph (i) of this rule.
  (3) "Mediation" means a procedure presided over by an approved mediator to promote conciliation, communication, and the ultimate settlement of an adversary proceeding or contested matter pending in this court.
  (4) "Mediation Conference" means a settlement conference or meeting conducted by a Mediator during the course of a Mediation.
  (5) "Mediation Panel" means the Mediation Panel of the District Court that is maintained in the office of the Clerk of that court.
  (6) "Mediation Reference" means a directive contained within a scheduling order or other order entered by the court directing the parties to participate in a Mediation.
  (7) "Mediation Report" means a report filed with the court by a Mediator in the form provided by the Clerk.
  (8) "Presiding Judge" means the bankruptcy judge assigned to the adversary proceeding or to the case in which the contested matter is pending.

(c) Neutrality of a Mediator

A Mediator may not accept an engagement in a Mediation in circumstances in which he or she has a personal bias or prejudice relative to the parties or issues involved in the dispute being mediated.

(d) Mediators as Counsel in Other Cases

A Mediator who has been engaged as a Mediator may not appear as counsel in the matter upon which he or she was engaged as a Mediator or in any substantially related matter. No person who is approved and designated as a Mediator will for that reason be disqualified from appearing and acting as counsel in any other case pending before the court.

(e) Disclosure of Conflicts

Prior to accepting an engagement as a Mediator, each Mediator must disclose to the parties all actual or potential conflicts of interest reasonably known to the Mediator, any current, past, or expected future professional relationship, consulting relationship, personal relationship, or pecuniary interest with or in any party or attorney involved in the Mediation, as well as any other circumstance or matter which would result in the disqualification of a judicial officer under 28 U.S.C. § 455. Mediators must also disclose to all parties any offer made to the Mediator before completion of the Mediation process of a future professional, consulting, or pecuniary relationship with any party or attorney or law firm involved in the underlying dispute.

(f) Confidentiality and Restrictions on the Use of Information

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 as discussions of compromise and settlement are inadmissible under Federal Rule of Evidence 408. Mediation proceedings may not be reported, recorded, placed into evidence, or made known to the Presiding Judge, or construed for any purpose as an admission against interest. Mediators must not divulge the details of information imparted to them in confidence in the course of Mediations without the consent of the parties, except as otherwise may be required by law.

(g) Compensation of Mediators

Mediators will be compensated at rates to be agreed upon by the parties and the Mediator. Compensation for any Mediator's services must be borne equally by the parties to the Mediation unless other arrangements are agreed to by the parties.

(h) Subpoenas

Neither the parties to the Mediation nor any other person in any forum may attempt to subpoena the Mediator or any documents created in connection with, and for the purpose of, Mediation, without first obtaining leave of court to do so.

(i) Qualification of Mediators

Unless the Presiding Judge orders otherwise, an individual may be approved to serve as a Mediator if he or she is (i) a member of the Mediation Panel, or (ii) selected by agreement of all of the parties. The Presiding Judge has complete discretion and authority to withdraw the approval of any Mediator at any time.

(j) Party Attendance Required

Unless otherwise excused by the Mediator in writing, all parties, or party representatives, and any required claims professionals (e.g., insurance adjusters) must be present at the Mediation Conference with full authority to negotiate a settlement. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the court.

(k) Mediation Report

Within seven days following the conclusion of each Mediation Conference, the Mediator must file a Mediation Report, which includes a statement as to whether (i) all parties were present, (ii) the adversary proceeding or contested matter settled; (iii) the Mediation was continued with the consent of the parties, and (iv) the Mediation was terminated without a settlement. No other information may appear on the Mediation Report; nor, without the consent of all parties, may any other or additional report or communication regarding the status of the Mediation be provided by the Mediator to the Presiding Judge.

(l) Special Procedures When Mediation is Ordered Without the Consent of the Parties

  (1) In the event the parties cannot agree on a Mediator, the plaintiff (in the case of an adversary proceeding) or movant (in the case of a contested matter) must submit a list of a minimum of five proposed Mediators selected from the Mediation Panel and the defendant or respondent must select a Mediator from that list and notify the plaintiff/movant of the selection within seven days after receipt of the list. If the defendant/respondent does not timely notify the plaintiff/movant of the defendant/respondent's selection, the plaintiff/movant may select a Mediator.
  (2) At the request of an approved Mediator, the cost of his or her services or any portion thereof may be taxed as court costs.