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Alternative Dispute Resolution

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


(a) Referral for Mediation. With or without the consent of the parties, the presiding judge may
refer any adversary proceeding or contested matter to 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withdrawn by the presiding judge upon a determination for any reason that the matter referred is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
(2)   “mediator” means an individual approved to serve as mediator in an adversary proceeding or
contested matter in accordance with subdivision (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 by 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 of the district court; and
(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 Attorney in Other Cases. A mediator who has been engaged as a mediator may not
appear as an attorney 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 an attorney 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.  A mediator must not divulge the details of
information imparted to them in confidence in the course of a mediation 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—
(1)  a member of the mediation panel; or
(2)  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 7 days following the conclusion of each mediation conference, the
mediator must file a mediation report, which includes a statement as to whether—
(1)  all parties were present;
(2)  the adversary proceeding or contested matter settled;
(3)   the mediation was continued with the consent of the parties; and
(4)  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. 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 at least 5 proposed mediators
selected from the mediation panel and the defendant or respondent must select a mediator from that
list and notify the plaintiff or movant of the selection within 7 days after receipt of the list. 
If the defendant or respondent does not timely notify the plaintiff or movant of a selection, the
plaintiff or movant may then select a mediator from the list submitted. At the request of an
approved mediator, the presiding judge may order the parties to pay the cost of the mediator’s