Local Rule LR16.4: Federal Mediation Program

LR16.4 Federal Mediation Program

(a) Mediation Referrals and Withdrawals.

With or without the agreement of the parties in any civil action, except those exempted pursuant to Local Rule 16.3, the Court may refer all or part of the underlying dispute to Mediation pursuant to this Local Rule. Any Mediation reference may be withdrawn by the presiding judge upon a determination for any reason that the matter referred is not suitable for Mediation.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 a 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) "Mediator" means an attorney approved by the Court in accordance with paragraph (k) of this Rule. (2) "Mediation" means a procedure presided over by an approved Mediator to promote conciliation, communication, and the ultimate settlement of a civil action pending in this Court. (3) "Mediation Conference" means a settlement conference or meeting conducted by a Mediator during the course of a Mediation. (4) "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. (5) "Presiding Judge" means the Judicial Officer assigned to a civil action. (6) "Mediation Report" means a report filed with the Court by a Mediator in the form provided by the District Court Clerk. (7) "Mediation Panel" includes the Mediators who are approved by the Court to participate in Mediation.

(c) Approval of Mediators.

The Court shall approve those persons who are eligible and qualified to serve as Mediators. The Court shall have complete discretion and authority to withdraw the approval of any Mediator at any time.

(d) List of Approved Mediators.

A list of those Mediators comprising the Mediation Panel shall be maintained in the office of the Clerk and shall be made available to counsel and to the public upon request.

(e) Neutrality of a Mediator.

No Mediator shall 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.

(f) Mediators as Counsel in Other Cases.

No Mediator who has been engaged as a Mediator shall 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 shall for that reason be disqualified from appearing and acting as counsel in any other case pending before the Court.

(g) Disclosure of Conflicts.

Prior to accepting an engagement as a Mediator, each Mediator shall 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 shall 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.

(h) 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 shall 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.

(i) Compensation of Mediators.

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

(j) Subpoenas.

Neither the parties to the Mediation nor any other person in any forum shall 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.

(k) Qualification of Mediators.

An individual may be approved to serve as a Mediator if, within the discretion of the Court, he or she meets the following qualifications:

• All Mediators must be lawyers, licensed to practice in the State of Tennessee, and admitted to practice before the United States District Court for the Eastern District of Tennessee. • All Mediators must have practiced law at least five years. • All Mediators must agree to report the results of their Mediations in accordance with paragraph (m) of this rule. • All Mediators approved after January 1, 1997, must have had at least 40 hours of formal Mediation training as approved by the Court and such procedural training as shall be provided by the Clerk. • All Mediators must agree that they will be available to conduct at least one Mediation per year without compensation. • All Mediators must commit to at least one year of service on the Mediation Panel. • All Mediators must agree to participate in the reporting and research requirements of the program as they may be developed; it is provided, however, that no reporting or research requirement shall require a Mediator to divulge any confidence in violation of Paragraph (h) of this Rule. • All Mediators must agree to comply with the provisions of this Rule and of any Standing Order which may be entered in any Division of this Court for purposes of implementing this Rule. • All Mediators must agree to provide to the Court such biographical and other information as the Court may require. • Any lawyer approved by the United States District Court for Middle District of Tennessee as an ADR panel member shall be deemed approved as a Mediator in this District and may conduct Mediations in accordance with this Local Rule and the Standard Operating Procedures in force and effect in this District's Federal Mediation Program. • Pursuant to 28 U.S.C. § 653(b), magistrate judges of this Court may service as neutrals and conduct judicial settlement conferences provided they have received formal training to serve as neutrals in the alternative dispute resolution process.

(l) 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) shall 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.

(m) Mediation Report.

Within 7 days following the conclusion of each Mediation Conference, the Mediator shall file a Mediation Report on a form provided by the Clerk indicating whether all required parties were present. The report should also indicate: (a) whether the case settled; (b) whether the Mediation was continued with the consent of the parties; or (c) whether the Mediation was terminated without a settlement. No other information shall appear on the Mediation Report nor, without the consent of all parties, shall any other or additional report or communication regarding the status of the Mediation be provided by the Mediator to the Presiding Judge.

(n) Standing Orders.

Each Division of the Court may prescribe by Standing Order procedures that are specific to that particular Division and which are necessary to the implementation of this Local Rule. Such Standing Order shall not conflict with the provisions of this Rule, however.

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

(1) In the event the parties cannot agree on a Mediator, the Administrator shall select three approved Mediators and one additional approved Mediator for each additional party over two. After receiving the Administrator's designation, the parties shall each strike one name from the Court's designations. The remaining Mediator shall be assigned to the case unless a timely objection is made to the Administrator and upheld. In that event, or in the event the Mediator selected cannot serve, the process will be repeated.

(2) In the event the parties cannot agree on the compensation of the Mediator, the parties shall submit the dispute to the Administrator who shall set the Mediator's compensation.

(3) At the request of an approved Mediator, the cost of his or her services or any portion thereof may be taxed as court costs.

(p) Administration of the Mediation Program.

Pursuant to 28 U.S.C. § 651(d), the Court shall appoint a judicial officer or employee by separate order to serve as the Administrator of the Federal Mediation Program. The Clerk shall designate the Division Managers of each of the four divisions of the Court to assist the Administrator by serving as Mediation coordinators in each of the respective divisions of the Court. The Administrator shall promulgate, and update from time to time, standard operating procedures for the Court's Mediation program. The standard operating procedures shall conform to the requirements of the Act and the local rules of this Court. The Court's Mediation program shall be known as "The Federal Mediation Program." The Administrator shall be responsible for communications between the approved Mediators and the Court and vice versa. The Administrator shall chair a standing committee on Mediator qualifications and approval which will make recommendations to the chief judge of the district concerning the addition and removal of approved Mediators. The chief judge shall appoint two other members of this standing committee.