the neutral zone

vol.5 issue 4
5.05

News and Updates

TVMA Judges Panel 5/17

Mediation Lessons
Volunteers of the Month

CCFV's Family Violence Court

Legal Language

Our Mediation Community

Celebrate Spring by supporting CMC!

"Suits at court are like the winter nights, long and wearisome."
--Thomas Deloney

News and Updates:

CMC Board Meeting: 

Thursday, May 19, 6-8pm, Juvenile Court Lobby 

Executive Board Meeting, May 18, 12-2pm, Pioneer Bldg.

TVMA Dates:

Tuesday, May 17th
This program should not be missed! 

A Judges Panel on Mediation:  Judge Cerny (General Sessions), Judge Swann (Fourth Circuit), and Referee Judge Joseph (Juvenile)
6:30pm-7:00pm, Social time w/refreshments

7:00pm- 8:00pm, Program, (CLE & CME available)

Location:  6th Floor, Candy Factory, World's Fair Park.

For those member of TVMA who would like to attend the regular monthly Board meeting, please come on the same evening, same place, but a little earlier, May 17, at 5pm, 6th Floor, Candy Factory.

TVMA Board members for 2005:

President - Marsha Hupfel
Vice-President - Jackie Kittrell
Secretary - Kathy Theis
Treasurer - Judy Toole
Board Members At Large - Wayne Whitehead, Becky Jacobs, Ron Davis, Deborah McDowell.

Mediation Book Recommendations:


The Making of a Mediator : Developing Artistry in Practice by Michael D. Lang, Alison Taylor

Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution by Daniel Bowling

Mediation Links:

Alliance for Conflict Transformation, www.conflictransformation.org

Remember May is Mental Health Month and Better Sleep Month!

Mediation Lessons

by Jackie Kittrell, Esq., Associate Director, CMC

This just in from the Tennessee Court of Appeals at Knoxville, filed 4/22/05:  In a case out of Greene County Circuit Court, Myers v. Myers*, the Court held that a written mediation agreement is an enforceable contract, even if the referring court had not approved it and entered an order based on the agreement.  

In Myers, a divorcing couple entered into a written agreement as a result of mediation.  The husband, wife, and both their attorneys mediated for six hours, the mediator drafted the 5 page agreement, and all parties signed it.  The parties then agreed that husband's attorney would draft the Marital Dissolution Agreeement. 

Before the MDA was done, the wife stated said she had changed her mind about how the marital property was valued, terms of which had been a part of the mediated agreement.  The husband motioned the court that a valid and binding agreement had been reached through mediation, and that it should be enforced.  He attached a copy of the mediated agreement as an exhibit to the Motion.  (Both parties had counsel to do all this.)

The trial court conducted a hearing on the motion.  The wife testified that she had been reluctant to sign the agreement, that she felt tired and pressured, decided it was unfair the day after she signed it, BUT admitted that she and her attorney had willingly signed the agreement.  (The appeals court notes that the mediated agreement was drafted "albeit somewhat informally"---maybe this means handwritten?)  The court then found that, in the absense of fraud or mistake, neither of which applied here, the agreement was valid and conclusive as to the intentions of the parties and should be enforced. 

On appeal, the wife argued that, since she had changed her mind and withdrawn her consent before the judge approved the mediated agreement, it was improper for the court to adopt and enforce it. She relied on the Tennessee case of Harbour v. Brown, which involved parties to an oral agreement reached the day of trial; they announced to the court they had an agreement and would submit an order of compromise and dismissal later.  Soon after, one of the parties withdrew her consent.  In Harbour, the Tennessee Supreme Court held, "The power of a court to render judgment by consent is dependent on the existence of the consent of the parties at the time the agreement receives the sanction of the court or is rendered and promulgated as a judgment."  

The high court remanded the case for a hearing on what kind of agreement was at issue---oral or written. After a hearing, the trial court found that there was actually a written contract in existence when one party withdrew consent, and then found that the party withdrawing consent was in breach of the written contract.  Harbour still stands for the proposition that a court cannot enter a consent order when it has notice that one party no longer consents---BUT it can enforce a pre-existing written contract on the same subject.  (See why lawyers are so helpful???)

So, back to the Myers case: the Court noted that although the wife had a change of heart (the hearing evidenced no fraud or duress), there was a written contract--the mediated agreement--and that contract was valid and enforceable by the court, even though the court couldn't enter a final order approving it because consent was withdrawn.

Remember, too, last month's case, Ledbetter v. Ledbetter:  Get that mediated agreement (or an interim agreement) in writing and signed before ending the mediation session!

*The opinion is available for download on the Administrative Offices of the Court (AOC) website, in .pdf format:
www.tsc.state.tn.us/OPINIONS/Tca/PDF/052/myersdopn.pdf   

Thanks to the Tennessee Bar Association Dispute Resolution Section for the information. www.tba.org/med-dir/index.html

If any of our mediators have any questions about Rule 31, please call CMC and we can direct you to the answers. If anyone is a Rule 31 mediator and would like to be on the CMC referral list, please ask us!   594-1879.

 Tusculum College Marketing Class:

Presenting Team:
Regina Trivette
Kay Miller
Tina Cornwell
Jim Gorley

Researching Team:

Megan Renninger

Anna Palaganas

Karen Henson

Libby Blosser