Tenn. R. Sup. Ct., 11

As amended through November 4, 2024
Section 11 - Proceedings for Discipline of Rule 31 Mediators
(a) Initiation of Complaint
(1) Any individual who participated in a Rule 31 Mediation may file a complaint alleging a violation of or failure to comply with the provisions of this Rule or any standard promulgated under this Rule against the Rule 31 Mediator(s) who conducted the Rule 31 Mediation.
(2) Any complaint against a Rule 31 Mediator must be received by the Programs Manager of the Administrative Office of the Courts no later than 180 days after the date of the final mediation session or alleged violation of a provision of this Rule or any standard promulgated under this Rule.
(3) The complainant shall submit a sworn complaint to the Programs Manager using a complaint form promulgated by the ADRC and posted on the AOC website.
(4) Any complaint that is not sworn or is received later than 180 days after the date of the final mediation or alleged violation will not be accepted and the complainant will be barred from pursuing the complaint with the ADRC. This statute of limitations only applies to the ADRC's exercise of its own procedures contained within this Rule.
(b) Processing of Complaint
(1) Once a Complaint has been received, the Programs Manager shall, within a reasonable period of time, forward the complaint to the ADRC Chair.
(2) Within a reasonable time after receiving the complaint from the Programs Manager, the ADRC Chair shall appoint a Grievance Committee consisting of three ADRC members, and, when possible, from the Grand Division in which the alleged act or failure to act giving rise to the allegations contained in the complaint took place. If the complaint is against an ADRC member, the Grievance Committee shall consist of three non-ADRC members appointed by the Supreme Court.
(3) The Grievance Committee shall, within a reasonable period of time, review the complaint and make a facial sufficiency determination as to whether the allegations contained in the complaint, if taken as true, may constitutea violation of Rule 31 or any standard promulgated under Rule 31.
(4) If the Grievance Committee finds that the conduct that is the subject of the complaint does not constitute a violation of Rule 31 or any standard promulgated under Rule 31, the Grievance Committee shall dismiss the complaint without prejudice and the Programs Manager shall notify the complainant and the Rule 31 Mediator of the dismissal.
(c) Process if Grievance Committee Determines Facial Sufficiency of Complaint
(1) If the Grievance Committee determines that the allegations, if taken as true, mayconstitute a violation of Rule 31o r any standard promulgated under Rule 31, the Committee shall prepare a list of any rule(s) or standard(s) which the Rule 31 Mediator may have violated. The Programs Manager shall send a copy of the complaint, the list of alleged Rule violations and a copy of Rule 31 tothe Rule 31 Mediator named inthe complaint. Service shall be made by mailing a copy of the document to be served to such person's last known address. Service by mail is complete upon mailing.

Service may also be made by sending him or her the document in Adobe PDF format to the Rule 31 Mediator's last known email address as maintained under Section 15 or which shall be promptly furnished on request. A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Section 11.

(2) The Rule 31 Mediator shall send a written response to the Programs Manager by postal mail and electronic mail and the AOC must receive the response within 30 days of the posting in (c) (1). If the Rule 31 Mediator fails to timely respond to the allegations, the grievance shall be deemed admitted, and the Grievance Committee may, within 10 days, recommend sanctions per subsection (d)(2)(v).
(3) Within 10days of receipt of the Rule 31 Mediator's response, the Programs Manager shall forward a copy of the Rule 31 Mediator's response to the complainant by postal mail and may also forward a copy by electronic mail. Within 30 days of posting of the Rule 31 Mediator's response, the complainant shall send a written response to the Rule 31 Mediator's response to the Programs Manger by postal mail and electronic mail. The AOC must receive the complainant's counter-response within 30 days of the Programs Manager's posting of the Rule 31 Mediator's response.
(4) Within 10 days of receipt of all responses, the Programs Manager shall forward all responses received to the Grievance Committee.
(5) Notwithstanding any other provision in this Rule, at any time while the Grievance Committee has jurisdiction, it or its designated chair may meet with the complainant and the Rule 31 Mediator, jointly or separately, in an effort to resolve the matter. These meetings may be in person, by video-conference, or by teleconference at the discretion of the Committee. Anyresolution may include sanctions if agreed to by the Rule 31 Mediator. If the Rule 31 Mediator agrees to sanctions and aresolution is reached,a stipulation of dismissal signed by the complainant and the Rule 31 Mediator with the concurrence of the Grievance Committee shall be submitted to the ADRC Chair and the complaint shall be dismissed with prejudice. At any time, the Grievance Committee may accept an admission by the Rule 31 Mediator and impose sanctions determined by the Committee per subsection (d)(2)(v).
(6) If there is no resolution per subsection (c)(5), the Grievance Committee shall review the complaint, the Rule 31 Mediator's response, the complainant's counter-response, and the result of any investigation directed by the Committee Chair, including any documentation, to determine whether there is probable cause to believe that the alleged misconduct occurred and constituted a violation of this Rule or any standard promulgated under Rule 31. If there is no probable cause, the Committee shall dismiss the complaint in a written decision and said decision shall be final with no right to an appeal. The Programs Manager shall forward a copy of the decision to the complainant and the Rule 31 Mediator.
(d) Process if Grievance Committee Determines Probable Cause

Upon a finding of probable cause, the Grievance Committee may:

(1) Without a hearing, determine by clear and convincing evidence that a violation has occurred and issue a written decision, including a statement noting the provisions of this Rule or any standardpromulgated under Rule 31 that the Rule 31 Mediator failed to comply with and the Grievance Committee's reasons for not proceeding to a hearing on the matter. In its decision, the Grievance Committee shall impose appropriate sanctions per subsection (d)(2)(v). The Programs Manager will send this written decision to the Rule 31 Mediator and the complainant; or
(2) Hold a hearing within 30 days or as soon thereafter as all parties, Grievance Committee members and witnesses are available for a hearing, on a date and at a location to be determined by the Grievance Committee.
(i) Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery and for the appearance of any person before the Grievance Committee may be issued by the chair of the Committee or the ADRC. Subpoenas may be served in any manner provided by law for the service of witness subpoenas in a civil action.
(ii) Any person who, without adequate justification, fails to obey a duly served subpoena may be cited for contempt of the Grievance Committee or ADRC. Should any witness fail, without justification, to respond to the lawful subpoena of the Committee or ADRC, or having responded, fail or refuse to answer all inquiries or produce evidence that has been lawfully subpoenaed, or should any person be guilty of disorderly or contemptuous conduct before any proceeding, the Chair of the Grievance Committee or ADRC may cause a petition to be filed before the circuit court of the county in which the contemptuous act was committed. The petition shall allege the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of the alleged contempt of the Grievance Committee or ADRC. Such petition shall pray for the issuance of an order to show cause before the circuit court why the circuit court should not find the person in contempt of the Grievance Committee or ADRC and why the person should not be punished by the court therefore. The circuit court shall issue such orders and judgments therein as the court deems appropriate.
(iii) Hearings by the Grievance Committee may be conducted informally, but shall be conducted pursuant to the Tennessee Rules of Evidence that may be liberally construed. Witnesses shall testify under oath. Proceedings may be reported by a court reporter, and the cost of the same shall be paid by the party requesting the reporting.
(iv) The complainant shall have the burden of proving all allegations by clear and convincing evidence.
(v) If, after the hearing, the Committee finds clear and convincing evidence that the Rule 31 Mediator has violated Rule 31 or any standard promulgated under Rule 31 and that such violation warrants a sanction(s), the Committee shall impose an appropriate sanction(s), including but not limited to, private admonition, a public reprimand, additional training, suspension, and/ ordisqualification. The Committee shall issue a written opinion containing its findings of fact and conclusions. The Programs Manager will forward a copy of the decision to the complainant and the Rule 31 Mediator.
(e) Appeal of Grievance Committee Decision
(1) Any party who desires to obtain a review of the decision of the Grievance Committee rendered either pursuant to subsection (c)(2), (d)(1), or following a hearing held pursuant to subsection (d)(2), may appeal to the full ADRC (excluding those members who served on the Grievance Committee that initially heard the complaint) by filing a written notice of appeal with the ADRC through the Programs Manager, within 30 days following the Committee's decision.
(2) If the parties agree to limit the issues to be presented for review, the ADRC may choose to accept those limitations. The full record of the subject disciplinary process, including the findings of the Grievance Committee, shall be made available to the ADRC during the review process.
(i) Content of the Record. The record on appeal shall consist of:
(A) copies of all papers filed with the Programs Manager;
(B) the original of any exhibits offered;
(C) the transcript or statement of the evidence or proceedings, which shall clearly indicate and identify any exhibits offered in evidence and whether received or rejected; and
(D) any other matter designated by a party and properly includable in the record.
(ii) Transcript of Stenographic or Other Substantially Verbatim Recording of Evidence or Proceedings. Except as provided in (iii) of Section 11(e)(2), if a stenographic report or other contemporaneously recorded, substantially verbatim recital of the Grievance Committee Hearing is available, the appellant shall have prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. Unless the entire transcript is to be included, the appellant shall, within 15 days after filing the notice of appeal, file with the Programs Manager and serve on the appellee a description of the parts of the transcript the appellant intends to include in the record, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary, the appellee shall, within 15 days after service of the description and declaration, file with the Programs Manager and serve on the appellant a designation of additional parts to be included. The appellant shall have the additional parts prepared at the appellant's own expense. The transcript, certified by the appellant or the reporter as an accurate account of the proceedings, shall be filed with the Programs Manager within 60 days after filing the notice of appeal. Upon filing the transcript, the appellant shall simultaneously serve notice of the filing on the appellee. Proof of service shall be filed with the Programs Manager with the filing of the transcript. If the appellee has objections to the transcript as filed, the appellee shall file objections thereto with the Programs Manager within 15 days after service of notice of the filing of the transcript.
(iii)Statement of the Evidence When No Report, Recital, or Transcript Is Available. If no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available, or if the appellant determines that the cost to obtain the stenographic report in the matter is beyond the financial means of the appellant or that the cost is more expensive than the matters at issue on appeal justify, and a statement of the evidence or proceedings is a reasonable alternative to a stenographic report, the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant as an accurate account of the proceedings, shall be filed with the Programs Manager within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. Proof of service shall be filed with the Programs Manager with the filing of the statement. If the appellee has objections to the statement as filed, the appellee shall file objections thereto with the Programs Manager within 15 days after service of the declaration and notice of the filing of the statement.
(3) An appealing party shall submit a brief describing the issues and matters for which the appealing party seeks a ruling and decision of the ADRC. This shall be submitted to the ADRC via the Programs Manger, within 45 days after filing a written notice of appeal with the ADRC. The brief shall be served on the other party by the appealing party.
(4) The appellee shall submit a responsive brief to the ADRC via the Programs Manger, within 30 days after the receipt of the appealing party's brief and serve a copy on the other party.
(5) Within 10 days of receipt of all briefs, the Programs Manager shall forward copies of all briefs to the ADRC members.
(6) The ADRC, without those members who served on the Grievance Committee and initially heard the complaint, will hear the appeal within a reasonable time. The standard of review shall be de novo on the record with no presumption of correctness. The appellate review shall be set as soon as reasonably possible.
(7) Sections 11(c)(5) and (d)(2)(iv-v) of the Rule shall also apply to the hearings of the ADRC.
(8) The ADRC will hear and determine the complaint and then issue a written decision as towhether the complainanthas shown by clear and convincing evidence that the Rule 31 Mediator violated Rule 31 or any standard promulgated under Rule 31. If the ADRC determines thatRule 31 or any standard promulgated under Rule 31 was violated, the ADRC shall impose appropriate sanctions, including a private admonition, a public reprimand, additional training, suspension, and/ or disqualification.The decision of the ADRC is final and there is no right to an appeal.
(f) General Provisions
(1) A Rule 31 Mediator's failure to comply with sanctions imposed under this Section may, at the option of the ADRC, result in additional sanctions, including but not limited to loss of credentials, or the filing of a petition for contempt per the process set forth in subsection (d)(2)(ii).
(2) All matters, investigations, or proceedings involving allegations of misconduct by a Rule 31 Mediator, including all hearings and all information, records, minutes, files or other documents of the ADRC, the Grievance Committee, and AOC staff shall be confidential and privileged, and shall not be public records nor subject to disclosure, until or unless:
(i) a recommendation for the imposition of public discipline, without the initiation of a hearing, is filed with the ADRC by the Grievance Committee; or
(ii) the Rule 31 Mediator requests that the matter be public; or
(iii) the complaint is predicated upon conviction of the Rule 31 Mediator for a crime.
(3) All work product and work files (including internal memoranda, correspondence, notes and similar documents and files) of the ADRC, Grievance Committee, and staff shall be confidential and privileged.
(4) All participants in any matter, investigation, or proceeding shall conduct themselves so as to maintain confidentiality.
(5) The confidentiality of a mediation is deemed waived by the parties to the extent necessary to allow the complainant to fully present his or her case and to allow the Rule 31 Mediator to fully respond to the complaint. The waiver relates only to information necessary to deal with the complaint. The ADRC, the Grievance Committee, and staff will be sensitive to the need to protect the privacy of all parties to the mediation to the fullest extent possible commensurate with fairness to the Rule 31 Mediator and protection of the public.
(6) Once the Grievance Committee has issued an opinion, a synopsis of the case may be published in the ADRC quarterly newsletter and on the AOC website. The name of the complainant will not be included in the synopsis. If the Rule 31 Mediator is not publicly sanctioned, the name of the Rule 31 Mediator will not be included in the synopsis.
(7) Members of the Grievance Committee, the ADRC and AOC staff shall be immune from civil suit for any conduct in the course of their official duties.
(8) Notwithstanding any other provision of this Rule, if a grievance results in a finding, whether by admission or by decision of the Grievance Committee or the ADRC, that a Rule 31 Mediator who is also an attorney violated Rule 31 or any standard promulgated under Rule 31, and once any rights of appeal have been exhausted or have expired, the ADRC shall report the finding to the Board of Professional Responsibility of the Supreme Court of Tennessee.

Tenn. R. Sup. Ct., 11