36-6-409 - Procedures and restrictions applicable to dispute resolution. - Tennessee Statutes

36-6-409. Procedures and restrictions applicable to dispute resolution.

The following procedures and restrictions are applicable to the use of the dispute resolution process under this part:

     (1)  Each neutral party, the court, or the special master shall apply or, in the case of mediation, assist the parties to uphold as a standard for making decisions in mediation, the criteria in this part. Nothing in this part shall be construed to prevent a party from having the party's attorney present at a mediation or other dispute resolution procedure.

     (2)  The Tennessee rules of evidence do not apply in any mediation or alternative dispute resolution process; the neutral party may rely upon evidence submitted that reasonably prudent persons would rely upon in the conduct of their affairs.

     (3)  When dispute resolution is utilized in this chapter, it shall be preceded by a pretrial conference and the attendance by parents at the parent educational seminar set forth in § 36-6-408.

     (4)  The court shall not order a dispute resolution process, except court action, if the court:

          (A)  Finds that any limiting factor under § 36-6-406 applies;

          (B)  Finds that either parent is unable to afford the cost of the proposed dispute resolution process, unless such cost is waived or subsidized by the state;

          (C)  Enters a default judgment against the defendant; or

          (D)  Preempts such process upon motion of either party for just cause.

     (5)  If an order of protection issued in or recognized by this state is in effect or if there is a court finding of domestic abuse or criminal conviction involving domestic abuse within the marriage that is the subject of the proceeding for divorce or separate support and maintenance, the court may order mediation or refer the parties to mediation only if:

          (A)  Mediation is agreed to by the victim of the alleged domestic or family violence;

          (B)  Mediation is provided by a certified mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and

          (C)  The victim is permitted to have in attendance at mediation a supporting person of the victim's choice, including, but not limited to, an attorney or advocate. No victim may provide monetary compensation to a non-attorney advocate for attendance at mediation. The other party may also have in attendance at mediation a supporting person of such party's choice, including, but not limited to, an attorney or advocate.

     (6)  If a dispute resolution process is not precluded or limited, then in designating such a process the court shall consider all relevant factors, including:

          (A)  Differences between the parents that would substantially inhibit their effective participation in any designated process;

          (B)  The parents' wishes or agreements and, if the parents have entered into agreements, whether the agreements were made knowingly and voluntarily; and

          (C)  The financial circumstances of the parties to pay for alternative dispute resolution processes where court sanctioned alternative dispute resolution programs are unavailable.

[Acts 2000, ch. 889, § 1; 2002, ch. 651, § 7.]