The Tennessee Alternative Dispute Resolution (ADR) Commission was recently presented with the following question:
Is drafting a marital dissolution agreement or other legal document for presentation to the court by a Neutral in a mediation setting considered “participation as attorney” or is it considered an appropriate memorialization of a settlement agreement under Rule 31?
On April 25, 2017, the ADR Commission answered this question in Advisory Opinion 2017-0002.
But first, let’s review.
Family-law mediators are governed by Tennessee Supreme Court Rule 31. Rule 31 § 10(c)(1) provides that family-law mediators “shall refrain from participation as attorney, advisor, judge, guardian ad litem, master, or in any other judicial or quasi-judicial capacity in the matter in which the Rule 31 ADR Proceeding was conducted.”
Rule 31 Appendix A § 10(a)(1) requires the family-law mediator to (1) request that any settlement agreement “be memorialized appropriately,” and (2) discuss “the process for formalization and implementation of the agreement.”
Finally, Rule 31 § 10(c) says, “The Neutral may assist the parties in memorializing the terms of the parties’ settlement at the end of the mediation.”
Against this background, the ADR Commission determined that family-law mediators can only prepare a “memorandum of understanding” reflecting the terms of the parties’ agreement but the mediator cannot prepare the necessary legal documents for filing with the court:
A Rule 31 Listed Mediator may assist the parties in memorializing the terms of the agreement by preparing a Memorandum of Understanding (“MOU”). A Rule 31 Listed Mediator should not prepare a Marital Dissolution Agreement or other legal document for presentation to the court. If the parties have attorneys, then the attorneys can prepare the paperwork necessary for filing with the court. If the parties do not have attorneys, the parties can prepare the paperwork necessary for filing with the court.
The memorandum of understanding should reflect the terms of the parties’ agreement and state that the parties expect those terms to be reduced to a court order. The parties can then
take the MOU to a lawyer and have the lawyer draft a Marital Dissolution Agreement that uses the MOU and includes additional language prepared by the attorney.
If the parties do not have attorneys and/or they choose to fill out the parenting plan themselves and submit it to the court for approval, the Mediator may discuss with the parties which categories their MOU agreements pertain to within the body of the Parenting Plan. . . . If both parties agree on all items in the Parenting Plan, then the parties must reduce that Parenting Plan to a formal Order and that Order must be submitted to the court for approval. A Rule 31 Mediator should not prepare legal documents, such as a Parenting Plan, that can be filed with the court for the parties to a mediation that the Mediator conducted.
K.O.’s Comment: It is not easy to draft a good parenting plan or marital dissolution agreement. I often see ambiguous, confusing, and contradictory agreements drafted by lawyers.
As presently written, Rule 31 forces laypeople — many of whom are poor, some of whom may not even be literate — to draft their own court orders or hire another lawyer (or two) to do it. Is this consistent with the Tennessee Supreme Court’s Access to Justice initiatives?
If unrepresented parties hire me as their mediator and the mediation produces an agreement, why shouldn’t they be able to benefit from my skill, knowledge, and experience in drafting the required court orders? How does performing that service remove my neutrality?
Judges, wouldn’t you prefer that attorney-mediators prepare agreed parenting plans and marital dissolution agreements instead of leaving that task to pro se parties?
The rules need to be revised to allow unrepresented parties to receive this necessary service from attorney-mediators.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.