### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 7, 2000 Session TEAM DESIGN, ET AL 

### . v. ANTHONY GOTTLIEB, ET AL 

### . Appeal from the Circuit Court for Davidson County No. 98C-162 Barbara N. Haynes, Judge
No. M1999-00911-COA-R3-CV - Filed July 18, 2002

This appeal r

aises impo

rtant issues rega

rding the permiss ible r ange of court-annexed alterna tive dispute resolution procedures available under Tenn. S. Ct. R. 31. The case began in the Davidson CountyGeneral Sessions Court as a dispute ov er payment for artwork and graphic design for a country music album. All the parties w ere diss atisfied withthe general sessions court’s disposition of their claims and perfected de novo appea ls to the Circuit Court for Davidson County. When a dispute arose over theinability of two of the parties to be present on the agreed-upon trial da te, the trial cou rt, with a ll partie s’ agreement, entere d an orde r refe rring the case to “binding mediation.” The trial court conducted separat e, off-the-record discussions with each of the pa rties and then entered an order finally adjudicating their claims. One of the parties filed a Tenn. R. Civ. P. 59.04 motion objecting to the

order on the ground that it ha

d not agreed to waive its right to a t rial if the outcome of the mediation was unsatisfactory. After the trial court denied its motion, the moving party perfected this appeal. We have de termined that the trial court lacked authority to conduct binding media

tion or to finally adjudicate the parties’ claims. Accordingly, we vac ate the final order. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Vacat ed and Remanded
W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and P ATRICIA J. C OTTRELL , J., joined. S. Ralph Gordon, Nashville, Tennessee, for the appellant, Intersound Ente rtainment, Inc. James H. Harris III, Nashville, Tennessee , for the appellee, Anthony Gottlieb.
Daniel B. Eisenstein, Nashville, T ennessee, for the appellees, Tea m Design and Harris Graphics, Inc.
OPINION
I.
Michael J. Bonagura

and Kathie Baillie Bonagura perform country music in a group known as “Baillie a

nd the Boys .” When

the tran sactionsgiving rise to this law su it arose , they were managed by Anthony Gottlieb, who did business as Morningstar Management. On Janu ar y 22,1 No record ofthi s hearing has been pre serve d. However, the r ecord cont ains affi davit s by t wo of the

part ici pati ng lawyer s conce rning t heir recol lect

ion of the heari ng. The recoll ecti ons of a thi rd lawyer are co ntain ed in an u nve rified re spo nse to Interso und ’s Te nn. R . Ap p. P. 5 9.04 mo tion. -2- 1996, the Bonaguras signed an “Exclusive Artist Agreement” with Intersound Entertainment, Inc. (“Intersound”), a Minnesota corporation whose principal place of business was in Roswell, Geor gia. This agreement obligated Intersound to be responsible for the artwork and g raphic design for the Baillie and the Boys a

lbums.
With Intersound’s knowledge and consent, the B onaguras hired Harris Graphics, Inc. and TeamDe sign to develop the artwork and graphics for an upcoming album ca lled “Lovin’ E ver y Minute.” They believed that Intersound would be responsible for paying for this work. However, unbeknownst

to the Bonaguras, Mr. Gottlieb had delivered a letter to Intersound agree ing that the Bonagura s would be

responsi ble for p aying for

the artw ork and g

raphic d esign for this album.
WhenHarris Graphics and Team Design wer e not paid for their work, they filed suit in the Davidson County General Sessions Court against Intersoundand Mr. Gottlieb seeking payment and an injunction against the use of their work until the y were p aid . The general sessions court later permittedHarris Graphics and Team Design to add the Bon aguras a s d efendants. Following a hearing, the generalsessions court granted Team Design a $4,086.75 judgment against Intersound andthe Bonaguras. It

also gra nted Har ris Graphics a $2, 200 judgme nt agains t Interso und and a $2,760 jud

gment aga

inst the Bon aguras. All the part

ies perf ected de novo appe als t o the Circu it Court for Davidson County. Thereafter, the Bonaguras filed a c ross-cla im against

Intersound alleging that it w as contr actually responsi ble for payi ng for the artwork and graphic design fo

r the “Lo vin’ Ever

y Minute”album. They also fileda cross-claim against Mr. Gottlieb asserting that he had violated his fiduc iary duty by sending the letter to Inters ound a greeing that they would be responsible for the artwork a nd graphic design for the “Lovin’ EveryMinute” album. In response, Mr. Gottlieb f iled a cr oss-cla im against th e Bonagur

as seeking $31,786 .17 in unpa id manage

ment fee s and exp enses. The trial was originally set for September 19 98 bu t, at the trial court’s initiative, was co n tinued twice to February 16, 1999. Approximately one month before trial, the lawye r representing the Bonaguras requested his fellow lawyers to agree to preserve the Bonaguras’ trial testimony by taking their depositions because Cactus Pete’s in Jac kpot, Neva da had declined to re lease them from a pervious contractual commitment that conflicted with the rescheduled cou r t date. The lawyers agree d, and the B onaguras’ depositions were scheduled for Janua ry 19, 1999. However, before the depositions could be taken, Mr. Gottlieb changed his mind andinsisted that the Bonaguras be prese

nt at the tri al. On January 21, 1999, the Bonaguras filed a motion seeking a continuance and an order enforcing the agreement permitting them to present their testimony by deposition. Team Design and Harri s Graphics agre ed to the use of the depositions at trial but objected to another continuance.
The trial court conducted a hearing on the Bonaguras’ motion on Februa ry 5, 1999. 1 After the trial court agreed to the Bonaguras’ request for a continuance, the lawyers and the trial court2 One of t he l awyer s s tat

es i n his unver if

ied res ponse to t

he Tenn . R. Civ. P. 59. 04 motion that t he parti es agreed thatthey woul d be bound by the tri al c ourt’ s deci sion and that there would be no appe al f rom thi s deci sion. Neither of the a ffi davit s submit

ted by t he othe r two l awyers c ontai ns t his speci fic ass ert ion.

3 No record of

thes e inf

ormal pr oceedi ngs has been pre serve d.

-3- begandiscussing another trial date. During this discussion, the trial court offered the alternative of “binding mediation” and stated that it would be ava ilable to con duct the mediation on March 11, 1999. The record contains no indi cation th at th e trial c ourt info rmed the parties o f the specific proce dures that would be used for this mediation or the legal consequences of their a g reement t o particip atein the mediation. 2 The lawyers for all the parties acce pted the c ou rt’s offer, and on February 16, 1999, the trial cou rt enter ed an ord er ref erring th e case to “binding mediation before this Court” on March 11, 1999. Thereafter, the trial court directed the parties to submit confident ial statemen ts outlining

their respectivepositions. When the parties returned to court on March 14, 1999, 3 a clerk explained the procedurethe trial court intended to follow which consisted of separate meetingswith each of the parties and their

lawyersin chambers. Over the next four hours, the tria

l court me

t separa tely with eachof the pa

rties and their l awyer. According to one of the lawyers, the trial court “made no attempt to seek a mutual agreement as to a resolution of the issues among the parties, but, after the final interview, announ

ced that she would

make a decisio n a nd enter an [o]rder reflec ting her decision.” On March 19, 1999, the trial court entered an order awa rding Team Design a $4,086.75 judgment against Int ersound a nd awar ding Har ris Graphics a $5, 044.45 jud gment against Intersound

. The trial cou

rt also aw arded I

ntersound a judgme

nt agains t Mr. Gottli e b fo r one-third of the total amount of Team D esign’s a

nd Harr is Graphi cs’ judgm

ents tobe paid from

moneys he received from the “Lovin’ Every Minute” a lbum. Likewise, the

trial cou rt awar ded Inte rsound a j udgment a

gainst the Bonagura s for one -third of the of Te am Design ’s and Ha rris Gra phics’ ju dgments to be paid from the roya lties gene rated f rom their “Lovin’ E

very Minu

te” albu m. On March 31, 1999, Intersound filed a Tenn. R. App. P. 59.04 motion based on its lawyer’s assertion that he had understood that the “binding mediation” offered by the trial court wouldbe the sort of mediation authorized by Tenn. S. Ct. R. 31 in which he had previously participated in other cases. H e also as serted that he never would have agreed to mediation had he understood the procedurethat the c ourt plan ned to follow. Tea

m D esign, Harris Graphics, and Mr. Gottlieb opposed the motion. They argued (1) that all the parties had agreed t o “binding mediation,” (2) that Intersoundhad not

objected to the procedure prior to the entry of the Ma rch 19, 1999 order, and

(3) that it would be unfair to permit Intersound to object to the proceeding at this point. The trial court entered an order onApril 29, 1999, denying Intersound’s post-trial motion. Intersound has perfected this appe al.
II.

T HE T RIAL C OURT ’ S A UTHORITY T O C ONDUCT B INDING M EDIATION
We turn first to the question of a Tennessee trial court’s aut hority to co nduct “binding mediation.” Intersound asserts that any s ort of m ediation conducted by a trial court in Tennessee4 Obviousl y, force or vi olence or t he thr eat of for ce or vi olence are una ccept able procedur es f or res olvi ng disputes. Likewise, it is unlikely that the court s would recognize or enf orce resol utions of disputes based on oncereco gniz ed p roce dur es suc h as c om pur gatio n, trial by com bat, o r trial by ord eal.

5 Tenn. Co de An n. §§ 29-5-3 01, -320 (20 00).

6 D & E Constr. Co. v. Robert J. Denl ey Co. , 38 S.W.3d 513, 518 (Tenn. 2001) (holding that “[w]hen the parties agree to arbitrate, they are bound by the terms of that arbitrati on prov ision.”).

7 The part ies ’ deci sion to make the res ult s of t heir alternative di spute res olut ion proc eeding “bindi ng” or “fina l” reflec ts their in tention that the issues jo ined and resolv ed in the p roce edin g can not b e tried a gain in cou rt. M & C C orp. v. Erwi n B eh n Gm bH & C o. , K .G. , 87 F. 3d 844, 847 (6t h Cir. 1996). Thus, t he outc ome of a “fi nal” or “bi nding” proceedi ng is concl usive on the parti es, and the court s pl ay only ali mited r ole when as ked to r eview t he results of these proceedi ngs . Arnold v . Morgan Keegan & Co. , 914 S.W .2d 4 45, 4 48 ( Ten n. 19 96) ; Vaughn v. Herndon , 91 Tenn. 64, 68, 17 S.W. 793, 794 (1891). The courts may modify or correct these d ecision s only in lim ited circ um stanc es, see, e.g. , Tenn. Co de A nn. § 29- 5-3 14, a nd th ey m ay v acate an award onl y on the basi s of fraud, corrupti on, or other mis conduct by the pe rson or

perso ns w ho m ade the d ecision

. Jocelyn v. Donnel , 7 Tenn. (1 Peck) 274, 275 (1823) (hol ding that “[a]n award good upon the f ace of it can not be impeache d but upon obj ecti ons which go to the misbeha vior of arbitra tors.”); T enn . Cod e A nn. § 29- 5-3 13; see also , Gro bet F ile Co . of Am ., Inc. v. RTC Sys., Inc. , 524 N.E. 2d 404, 406 (Mass. App . Ct. 1988); Motor Vehicle Acc. Indemnif icat ion Corp. v. Aet

na Cas. & Sur. Co. , 674 N.E. 1349, 1353- 54 (N.Y . 199 6). -4- must be consistent with Te nn. S. Ct . R. 31. In response, Team Design, Harris Graphics, a nd Mr. Gottlieb assert that the parties and t he trial court may, by agreement, agree upon an alternative dispute procedure that does not meet all the requirements of Te nn. S. Ct. R. 31 and that the trial court andthe parties did precisely that. We have determined that allcourt-a nnexed a lternative dispute resolution procedu

res must be

consiste nt with Ten

n. S. Ct. R. 31 and that the “binding mediation” procedure used in this case was not consistent with Tenn. S. Ct. R. 31.
A.
Public pol ic y strongly

favors r esolving d

isputes be

tween pr ivate pa rties by a greeme nt. Private parties may, of

course, decide to submit their disputes to the courts for resolution; however, a broad range of other

formal and informal alternatives are ava ilable beforethey resort to litigation. These procedures are, as a pra

ctical matter, limited only by the parties’ imaginations because the parties themselves may agree on virtually any mutually satisfactory procedure that is not illegal or contrary to public policy. 4 Thus, alternative dispute resolution procedures may range f romformal procedures such as arbitration under Tennessee’s version of the Uniform ArbitrationAct 5 to far less formal procedures such as “splitting the diffe rence,” f lipping a coin, or, for that matter, arm wrestling. At least with rega rd to formal a

greeme nts to reso lve disput

es, the c ourts will require the parties to follow their agreed-upon dispute resolution procedure aslong as they are competent and are dealing at arm’s lengt h. 6 Whe n the par

ties have agreed to be bound by the ou

tcome of their agreed-upon

procedu re, the c ourts will

requ ire them t

o accept the resu

lt by decl ining to try

their dispute de novo and by limiting the scope of judicial review of the outcome. 7
The parties’ ability to manipulate the contours of the p rocedu re to resolve their disputes narrows considerably once they submit thei r dis pute to the courts for resolution. Judicial8 Tenn. R. C iv. P. 1 6 pe rm itted trial co urts to conduct pre-t rial conferences, but thes e conferences were l imited to matters affecting the ef fici ency of the trial. While some tria l court s may have, on occasion, i nformally recommended settlem ent ra ther th an litiga tion, th is prac tice w as ne ither u nifo rm nor prev alent.

9 Th e am end me nts to Ten n. R. C iv. P. 1 6 trac ked the rec om me nda tions c onta ined in the J une 1994 report of the Tennessee Su preme C ourt Commiss ion whi ch, in t urn, ref lec ted the 1983 r evi si ons t o Fed. R. Civ. P. 16. Report of Tenne ssee Suprem e Court Com m’n o n Dispute Resolution 16 -20 (June 199 4) (“AD R Repo rt”).

10 Penny J. W hite, Yesterday’s Visi on , Tom orro w’s C halle nge : Ca se M ana gem ent a nd A lterna tive D ispute Resoluti on in Tennessee , 26 U . M em . L. Re v. 95 7, 95 9 (1 996 ) (“W hite”)

.

11 White, 26 U. Mem. L. Rev. at 963.

12 Tenn. S. Ct. R . 31, § 11( a) (19 95)

. This sect ion was renumbered as Tenn. S. Ct. R. 31, § 10(a) in 1996 but was removed fr om Tenn. S. Ct . R. 31 when the Tenne ssee Supreme Court rewrot e the rule in 2001.

13 Tenn. S. Ct. R. 31, § 3 (199 5). -5- proceedin gs must be conducted in acco rdance with the a

ncient c ommon-law

rules, a pplicabl e constitutional principles, statutes, and court rules.
In Tenness ee prior

to 1995, traditional litigation was the only procedure available to parties who turned to the courts for resolution of their disputes. The trial courts lacked

expressauthority to provide judicial oversight over pending cases other t han the sort of ove

rsight tra ditionally providedby Americ an judges

. 8 They certainly did not have express authority to offer or require the useof alternative dispute resolutionprocedures. This changed on July 1, 1995, when ame ndments to Tenn. R. Civ. P. 16 greatly expanded the trial courts’ case management a uthority. 9 For

the first time, Tenn. R. Civ. P. 16.03(7) specifically e mpowered trial co

urts to disc

uss “the p ossib ility o f settlement

or the use of extrajudicial procedures, including alter native dispute resolution, to resolve the dispute.” These amendments did not, however, empower trial cour ts to require the partie s to engage in any sort of alternative dispute resolution procedure or to participa te in any such procedure themselves. These changes were to come f ive months later.
On December 18, 1995, the Tennessee Supreme C ourt file d Tenn. S. C t. R. 31 establishing procedures for cour

t-annexed alter

native di spute

resolu tion in Tennessee’s trial courts. Like the amendme nts to Tenn. R. Civ. P. 16, Tenn. S. Ct. R. 31 was based in large part on the recommendations contained inthe June 1994 report of the Tennessee Supreme Court Commission on Dispute Resolution. The original version of the rule represented an incremental approa ch 10 to court-annexed

alterna tive dispu te resolu tion. The p

rocedur es permit ted by Te nn. S. Ct. R. 31 were intended to be alternatives, not replacements, to traditional litigation. 11
Under the original version of

the rule, Tenn. S. Ct. R. 31 procedu res bec ame ava

ilable on ly after “all parties are befor

e the court.” 1 2 At that time , any or a ll of the pa

rties cou ld reque st authorization to engage in an alternative dispute resolution procedure. 13 The rule also permitted the trial court, e

ven without the par

ties’ request

or consent but after consultation with the lawyers and14 Tenn. S. Ct. R. 31 , § 11 (b) (1 995 ) requ ired p rior co nsu ltation to deter min e w heth er the dispu te wa s am ena ble

to alternative di spute res olut ion and, if so, which method would be most appropriate. Ho we ver, T enn . S. Ct. R . 31, § 3(b) n ow dispenses with the prior consulta tion re quirement and empow ers t rial courts to enter “s tanding order s ” requi ring a ll case s t o be ref erre d to one of

thre e methods of

alternative di spute res olut ion.

15 Tenn. S. Ct. R. 31, § 3 (199 5). This provision is now foun d in Tenn. S. Ct. R. 31, § 3(b).

16 Tenn. S. Ct. R. 31, § 3 (1995). This pr ovisi on is now found in Tenn. S. Ct . R. 31, § 3( d). Tenn. S. Ct. R. 31, §§ 23 and 2 4 also make clear tha t t ria l courts may provide f or mini -trial s and s umm ary j ury trial s “onl y with t he conse nt of the parties .”

17 ADR Report, a t 44.

18 Alter nati ve dis pute r esol uti on expert s re peate dly empha size that voluntariness and self-determination are essent ial ingredient s of mediati on and that part ies must r emain free t o rej ect the proces s or i ts outcomes wi thout reper cussions. John W . Coo ley, Mediation Advocacy § 1.1 (19 96) ; see al so Th om as R. M cCo y, The Sop histic ate d Consum er’s Guide to Alte rnativ e Dispute Resol ution Techniques: What You Shou ld Expec t (o r De mand) Fr om ADR Services , 26 U. Mem. L. Rev. 975, 979 -98 3 (1 996 ) (“M cCo y”); Jo hn R eerick , et al., Standards of Prof essi onal Conduct in Alt ernat ive Dispute Resol uti on , 199 5 J. D isp. Re sol. 95 , 117 ; Law renc e M . W atson , Jr., Advice and Opinions From Me diato rs: A R ation al An alysis , 13 R esol. R ep. 1 3, 14 (Jan. 1 998 ).

19 Tenn. S. Ct. R. 31, § 2(c) (1995). The same def ini ti on of mediat

ion i s current ly found in Tenn. S. Ct . R. 31, § 2(f).

20 Tenn. S. Ct. R. 31, § 2(e) (19 95) . The sam e def inition of no n-b indin g arb itration is curre ntly found i n Tenn. S. Ct. R. 31 , § 2 (h) . I n it s 2001 revi si ons t o Tenn. S. Ct . R. 31, the Tennes see Supre me Co urt added a new s ecti on spec ifically empowering tria l courts to “c onduct Non-Bi nding Arbi tra ti on in ac cordance with pr ocedures to be developed by L oca l Rule , by S tand ing O rder or in c ons ultation with the p arties.” T enn . S. Ct. R. 31, § 21. The co urt atta ched to the a me nde d ru le “A ppe ndix B” c ons isting o f a “tem plate form of orde r for con sideration an d po ssible use (con tinue d...) -6- the parties, 14 to requir

e the par ties to par ticipate in a judicial settlement

conference, a mediation, or a case evaluation. 15 In addition, with the consent o f all par

ties, the trial court could refer the case for “non-binding arbitration, mini-tri al , summary jury tria l, or othe r approp riate al ternativ e dispute resolution proceedings.” 16
The original version of Tenn. S. Ct. R. 31, like the current version, specifically defined each of the alter native di spute re solution me thods contempl ate d by the rule. Consistent with the Commission’s recommendation that court-annexed alternative dispute proceedings should benonbinding, 17 each of these methods were intended to promote negotiated settlements between the parties themselves. They were not intended to require the parties to relinquish their decision-making right to an

y third pa rty who wo

uld make t

he decis ion for them. T he fact that all proposed alternative dispute resolution methods are non-binding i s a n essential attribute of the court-annexed procedur es permitted by Tenn. S. Ct. R. 31. 18 The rule specif ically defines mediation as “an informal process in which a ne utral person . . . conduct s discussions among the disputing parties designed to en able the m to reach a mutually acce ptable agreement

among themselves on all or any part of the issues in dispute.” 19 The arbitration permitted by the rule must be “non-binding.” 20 Likewise , a “cas e evalua tion” is advisory

only; a “m

ini-tria l”20 (.. .continued)

by parties and courts in fashioning their own order for non -binding arbitration.” Inexplicably, paragraph 15 of the form “Agreed Order For

Non-Bindi ng Arbit

rat ion” i n Appendix B appears t o permit the pa rti es t o “stipul ate” that the award reached in the “non-bi nding arbit rati on” shall be “finaland binding.” We need not address in thi s ca se how a nonbindi ng a rbit rati on ca n res ult in a “ fina l and bi nding” a ward becaus e the 2001 revi sions to Tenn. S. Ct . R. 31 do not govern this proceeding which took pl ace i n 1999. The 2001 revisio ns ha ve p rosp ective effec t only

. Stei ner-Li ff Iron & Metal Co. v . Woodmont Countr y Club , 480 S.W .2d 5 33, 5 40 ( Ten n. 19 72)

.
21 Tenn. S. Ct. R. 31, § 2(g) (199 5). This provision now appears in Tenn . S. Ct. R. 31, § 2(g).

22 Tenn. S. Ct. R. 31, § 2(h) (199 5). This provision now appears in Tenn . S. Ct. R. 31, § 2(m).

23 Tenn. S. Ct. R . 31, A ppe ndix , § (1) (d)(6 ). Th e prin ciple o f self-d eterm ination now app ears in Ten n. S. C t. R. 31, App endix A, § 1 (c)(6).

24 See also Do nov an L eisure Ne wto n & Irvin e, ADR Practice Book 468 (J ohn H. Wilki nson ed. 1990); Amanda K. E squ ibel, The Case of the Conf

li cted Mediator : An Argument Fo r Liab ility and Ag ainst Im mu nity , 31 Ru tgers L.J. 131, 134 (1999).

25 Tenn. S. Ct. R. 31, § 2(i ) (1995) . I n it s 2001 amendments, the c ourt r eplac ed the ter m “disput e res olut ion neutral” with “Rule 31 N eutral.” Tenn. S. Ct. R. 31, § 2(l).

26 In its 200 1 am end me nts to Tenn. S. Ct. R. 31, the Tennessee Supreme Court replaced the word “m ediator” wit h t he w or d “N eut

ra l. ” Te nn. S. Ct . R . 3 1, Appe ndi x A. -7- envisions that “the

partie s o r their representatives [will] seek a negotiated settlement of the dispute;” 21 and a “summary jury trial” e n visions only an “advisory verdict” followed by a “negotiated

settlement.” 22 In 1996, the Tennessee Supreme Court reaffirmed that all court-annexed altern a tive dispute resolution proceedings permitted by Tenn. S. Ct. R. 31 were premised on the principle of “self-determination.” 23
Another essentia l attribut e of alte rnative dispute r esolution is the neu trality a nd imparti ality of the mediators, arbitrators, or other neutral persons conducting the process. Poly Softwa re Int’l, Inc. v. Su , 880 F. Supp. 1487, 1494 (D. Utah 1995) (noting that the success of mediation depends largely on the ability of the

mediator to maintain a neutral position while carefully preserving the confidences that have

been re vealed) ; Howard v. Drapkin , 271 Cal. Rptr. 893, 902 (Ct. App. 1990) ( observing that the job of third parties such as mediators, conciliators and evaluator s involve s impartia lity and neutrality, as does that of a judge, commissioner or referee). 24 The importance of neutrality is reflected in the fact that Tenn. S. Ct. R. 31 refers to persons conducting court-annexed alternative dispute resolution proceedings as “dispute resolution neutrals.” 25 It is also reflected in the Standards of Profe ssional Cond uct for Rule 31 Medi ators adopted by th e Tenne ssee Supr

eme Courton September 26, 199 6, w hich state that “[i]ntegrity, impartiality, and professional competenceare essential qualifications of any mediator.” Tenn. S. Ct. R. 31, Appendix A, § (2)(a). 26
A third essential attribute of the court-annexed procedur es permittedby Tenn. S. Ct. R. 31 is confide ntiality. A

ll partie s in a mediation proceeding trust that theproceeding will be confidential because these proceedings permit them to “bare their soul” to the mediator a nd p rovide them the opportuni ty to vent which, in some instances, is all that stands in the way of a negotiatedsettleme

nt.27 The same provi sion appeared i n the 1996 r evi si on of Te nn. S . Ct . R. 31

. How ev er , t he Te nn es s ee Su pr eme

Court removed the provis ion i n the 2001 ve rsi on of t he rul e. Tenn. S. Ct. R. 31, § 7 now provide s t hat “ [e]vi dence of conduct or st atement s made in the cou rse of Ru le 31 A DR Proc eed ings a nd o ther p roce edin gs co ndu cted p ursu ant to an Ord er of R efere nce shall b e inad miss ible t o t he s ame exte nt as conductor st atement s ar e ina dmissi ble unde r Tenn. R. Evid. 408.”

28 Tenn. S. Ct. R. 31, Appendix A(1)(a) (1996). Th is pro vision now app ears a t Ten n. S. C t. R. 31 , Ap pen dix A, § 1(a). -8- Joseph H. Paulk, Why Mediation Works , 36 Tulsa L.J. 861, 864 (2001). The United States Court of Appeals for the Second Circuit has explained succinctly why conf identiality is necessary:
If participants cannot rely on theconfidential treatment of everything that transpires during [mediation] sessions then counsel of nece ssity w ill feel co nstrained to condu ct themse lves in a c autious, t

ig ht-lipped , non-committal manner more suitable to poker play ers in a high-stakes game than toadversaries attempting to arrive at a just resolution of a civildispute. T

his atmosph

ere if a ll ow ed to exis t would sur ely destroy the effectiveness of a pro gram whic h has led t

o settleme

nts

. . ., thereby expediting cases at a time when . . . judicia l resour ces . . . are sorely taxed.
Lake Utopia Paper Ltd. v. Connelly Containers, Inc. , 608 F.2 d 928, 930 (2d Cir. 1979). Accordingly, a vast

majority of the propone

nts of alte rnative dispute r esolution view con fidentia lity of the proceedings as a central issue. Sheldone v. Pennsylvania Turnpike Comm’n , 104 F. Supp. 2d 511, 513-14 (W.D. Penn. 2000); Kimberlee K. Kovach, Mediation: Principles and Practice 3 (2d ed. 2000 ); Jos hua J. Engelhart, Note, Federal Mediation Privilege: Should Mediator Communications Be Protected From Subsequent Civil and Criminal Proceedings: In re Grand J ury Subpoena Dated December 17 , 1996 , 1 999 J. Disp. Resol. 73, 73 (1999); Kenneth R. Feinberg, Mediation – A Preferred Method o f D ispute Resolution , 16 Pepp. L. Rev. S5, S29 (1989); Cheryl L. Baber, Alternative Dispute Resolut ion In the Twenty -First Cen tury: Alte rnative D ispute Resolution in the United States District Court for the Western District of Oklahoma , 36 Tulsa L.J

. 819, 832 (2001).
The Tennessee Supreme Court recognized the impor tance of

confide ntiality wh

en it firs t authorized

court-a nnexed a lternative dispute

resolution. Tenn. S. Ct. R. 31, § 6 (1995) required that a “mediato r, settle ment judge , or other

dispute r esolution neutral shall pre serve a

nd mainta

in the confide ntiality of all alternative dispute resolution proceeding s except w here required by

law to disclose the information.” 27 The Tennes see Supreme Court issued the Standards of Professional Conductfor Rule 31 Mediators in September 1996 to “instill and promote public confidence in the [a]lte rnative [d]ispute [r]esolution process under Rule 31.” 28 These standards reinforced t h e importance of confidentiality by stating that proceedings under Tenn. S. Ct. R. 31 were basedon the29 Tenn. S. Ct . R. 31, Appendix A(1)( d)(4) (1996). This pr ovisi on now app ears a t Ten n. S. C t. R. 31 , Ap pen dix

A, § 1(c)(4).

30 Tenn. S. Ct. R. 31, Append ix A(7)(a) (1996 ). In its 2001 revision to the rule, t he Tenn essee Suprem e Court replaced this language with t he foll owing: “A Neutral shal l prese rve and mai ntai n the c onf iden tiality of a ll dispu te resoluti on pro ceed ings e xce pt w here requ ired b y law to disc lose in form ation .” Te nn. S . Ct. R., Append ix A, § 7(a). The court also requ ired th at neu trals “[p ]reser ve an d m aintain the co nfid entiality of all inf orm ation obta ined dur ing R ule 31 ADR Proceedings and shal l not divul ge inf

ormati on obtai ned by the m during t he cours e of Rul e 31 ADR proceedi ngs without the consent of t he parti es, except

as otherwis e may be required by law.”

31 Tenn. S. Ct. R. 31, § 3. This provision now appears at Tenn. S. Ct. R. 31, § 3(b).

32 A judi cial

settl ement conf

erence is nothi ng more than medi ati on conduct ed by a “j ud icia l off icer .” Tenn. S. Ct. R. 31, § 2( d) (1995) . Thi s def ini ti on now appears at Tenn. S. Ct . R. 31, § 2( e). Pri or to 2001, al l other Tenn. S. Ct. R. 31 alterna tive d ispute res olut ion proce eding s, case evalua tions, me diations, m ini-trials, non-bind ing arbitration s, and summary jury tri als , were pres ided ove r by ei ther a “neut ral pers on” or a “neutralpanel.” Wh ile these terms w ere not defi ned, cons ider ati on of t he ent ire text of Tenn. S. Ct . R. 31 cle arl y demonstr ates that the c ourt e nvisi on ed th at “neutral perso ns” w ould inclu de law yers a nd n on- law yers w ho w ere n ot activ e jud ges. See Tenn. S. Ct. R. 31, § 5 (1996) (immunity of neutral s); Tenn. S. Ct. R. 31, §§ 7, 12(d) & Appendix A(9)(a) (1996) ( compensat ion of neutrals); Ten n. S. C t. R. 31 , § 13 (19 96) (qu alificatio n of neu trals); Te nn. S . Ct. R. 3 1, § 1 6 (1 996 ) (pro bon o req uirem ents for neutrals); and Tenn. S. Ct. R. 31, Appendix A(12) ( advertisi ng by neutrals). These pr ovisi ons now appear in Tenn. S. Ct. R. 31, §§ 8, 12, 13, 18( d), a nd Appendix A, § 9( a) & 12. However, Tenn. S. Ct. R. 31, §§ 21 and 22 n ow exp licitly perm it trial judges to co ndu ct non-b inding arbitration an d case ev aluation p roceed ings. Becau se simil ar language does not appear in Tenn. S. Ct . R. 31, §§ 23 and 24, neu tral per son s, not tria l judg es, m ust ap pare ntly still co ndu ct m ini-trials and su mm ary jury trials.

33 Tenn. S. Ct . R. 31, § 2(d) . Thi s pr ovis ion n ow appea rs at Tenn. S. Ct . R. 31, § 2(e). H ow eve r, in it s 2001 revi sions to Tenn. S. Ct. R. 31, the c ourt, for t he fi rst ti me, permit

ted t he judge to whom the ca se had be en ass igned f or tri al to conduc t the judi cial settl ement conference with the part ies’ consent. Tenn. S. Ct. R. 31, § 20. The same may not hold true fo r no n-b indin g arb itration s, case e valu ation s, min i-trials, or su mm ary ju ry trials beca use Tenn. S. Ct . R. 31, §§ 21, 22, 23, and 24 do no t contain sim ilar languag e. Tenn . S. Ct. R. 31, § 2 0 do es not ap ply to this case b ecause the 2001 amendments t o Tenn. S. Ct. R. 31 are pr ospective onl y and could not have appli ed to an alr eady concluded me diation

. -9- principles of “privacyand confidentiality” 29 and that “mediator [s] shall preser ve and ma

intain the confide ntiality of all mediation proceedings except where re quired by law to disclo se information.” 30
The principle s of self

-determination, ne utrality, and confidentiality influenced the Tennessee Supreme Court’s view of the rol e trial judges should properly play in court-annexed alternative dispute r esolution proceedings. While the

court ga ve trial c ourts the

authority to requir e litigant s, withor without their consent, to participate in a case evaluation, medi ation, or judicial settlement conference, 31 the cour

t caref ully limited

the trial court’srole in the se proceedings. First, the court permittedtrial judg es to par ticipate only in judicial settlement conferences. All other procee dings being presided over

by a “neutral person” or a “neutral panel.” 32 Secondly, with regard to judicial settlement

conferences, the court stated clea rly that judges presiding over a pending case could not also conduct the judicial settlement conference. The definition of “judicial settlement conference” makes it clear that these proceedings must be “conducted by a judicial officer

other than the judge before whom the case will be tried.” 3334 The bias problems flowing from perm itti ng a trial court to be p rivy to m ediatio n pr oce edin gs is dr am atically

ill ustrated by thi s cour t’s recent deci sion vacat ing a $1,750,000 verdict because the t

rial court’s comm ents i ndicated t hat it had not pr operl y di scharged its duty as thirtee nth ju ror an d tha t it was b iased again st one of the parties and its insurance company. Th e trial co urt, believ ing th at a rec alcitran t insura nce com pan y ha d de clined to m ake a reaso nab le settlement offer, stated on the record t hat he had discuss ed the pret rial sett lement conference wit

h the judge who had conducte d it

and tha t the judge had st ated that “[i ]t was his feel ing that ha d he been able to coerce a reasonable offer, thatthe plaintiff would have been coerce d to take a r easonable off er.” Davidson v. Lindsey , No. W2000 -0 289 1- COAR3- CV, 2002 T enn. App . LEX IS 344, at *14-15 , 18 (T enn . C t. App. May 6, 2002) ( Tenn. R. App. P. 11 appli cati on pending). -10- The policy reasons for not permitting the trial judge who could eventually try the cas e t o preside over

the mediation or other alternative dispute resolution procedure pe rmitted by Tenn. S. Ct. R. 31 are evident and

compelling. A judge who presides over a judicial settlement conference is not acting as a judge but as a neutral. Environm enta l A batement, Inc. v. Astrum R.E. Corp. , 27 S.W.3d 530, 540 (Tenn. Ct. A pp. 2000) ; Moxha m v. Crafton , No. M2000-00803-COA-R3-CV, 2001 WL 468669, at *6 (Tenn. Ct. App. May 4, 2001) (No Tenn. R. App. P. 11 application filed). The success of the settlement “depends largely on the willingness of the par ties to freely disclose

their intentions , desires, and the strengths and weaknesses of their case” with the neutral. Poly Softwa re Int’l, Inc. v. Su , 880 F. Supp . at 1494; see also Peter Demuth, Theo ries for Protecting Mediation , reprinted in Confidentiality in Mediation: A Practitioner’s Guide 155-164 (American Bar Ass’n, 1985). Thus, a ju dge cond ucting a s ettlemen

t confer ence becomes a c onfidant of the pa rties, In re County of Los Angeles , 223 F.3d 990, 993-94 (9th Cir. 2000), with whom the parties share information that would normally be shared only with their lawyers.
Generally, knowledg e gained in a prior

judicial p

roceed ing is not a

sufficie nt ground t

o require the recusalor disqua lification of a tria

l judge in a later judicial proceeding. Liteky v. United States , 510 U.S. 540, 551, 114 S. C t. 1147, 11 55 (1994) ; State v. Hines , 919 S.W.2d 573, 578 (Tenn. 1995); Talley v. Talley , 51 Tenn. App. 622, 633, 371 S.W.2d 152, 157 (1962). However, much of the information impartedduring a mediation is not the sort of information that would normally be disclosedto the other parties or the court. Accordingly, should the judge who conducts the judicial settlement

conferenc e later be called u pon to decide the iss ues of lia bility or da

mages, it i s impossible

to avoid questions as to whether he or she can disregard the ma tters disclosedduring the conference

or put aside any opinions or judgments already formed based on this information. Timm v. Timm , 487 A.2d

191, 193 ( Conn. 1985 ); Enterp ris e Leasing Co. v. Jones , 789 So. 2d 964, 967 (Fla. 2001); Hudson v. Hudson , 600 So.2d 7, 8-9 (Fla. Dist. Ct. App. 1992) ; Schel lin v. North Chinook I rrigati on Ass’n , 848 P.2d 10 43, 1045 (Mont. 1993 ); Craig v. Walker , 824 P.2d 1131, 1131-32 (Okla. 1992). 34
The Tenness ee Supre

me Court recognized these confidentiality and predisposition concerns in its September

1996 rev is ions to Ten

n. S. Ct. R. 31 . The cou rt added a provisi on to the r

ule stating:
A person se rving as a

Rule 31 disp

ute reso lution n eutral in an alternative dispute resolution proceed ing shall not participate as att or ney, advisor, judge, guardian ad litem, master or in any other35 Ten n. S. C t. R. 31 , § 10 (c)(1 ) doe s not a ppe ar to ap ply to j udici al s ettlement confer ences in l ight of Tenn. S. Ct. R. 3 1, § 2 0 w hich perm its trial cou rts, with the p arties’ ag reem ent, to conduct judici al settlem ent co nfer enc es in cases they ha ve been as signe d to t ry.
36 The noti on of bi nding media ti on is , i n the words of one alterna tive d ispute resolu tion e xpe rt, an “o xym oro n.” W ayn e D . Braz il, Comparing St ruct ures For the Deli very of ADR Servi ces by Courts : Cri ti cal Val ues and Concer ns , 14 O hio S t. J. on D isp. Re sol. 71 5, 71 9 n.3 (19 99) ; see also , McCoy, 26 U. Mem. L. Re v. at 989-990 (observing t

hat AD R nom enclature is “frequently confusing” and occasiona lly “downright m isleading”).

37 Th is court recentl y observed that a simil ar procedure amounting to nothing more than the e x part e rece pti on of evidence is neither mediation or any other au thorized form of al ter nati ve dis pute r esol uti on envis ioned by Tenn. S. Ct. R. 31

. King v. King , M2001-00275-COA-R3-CV, 2001 WL 2589131, at *3 n.2 ( Tenn. Ct . App. Dec. 13, 2001) (No Tenn. R. A pp. P. 11 application filed). -11-

judicial or quasi-judicial cap ac ity in the matter in which the alternative dispute resolution proceeding was conducted.
Tenn. S. Ct. R. 31, § 12(i) (1996). This provision now appears in Tenn. S. Ct. R. 31, § 10(c)(1). 35
B.
The “binding media

tion” pro ceeding

at issue in

this case did not com

ply with Tenn. S. Ct. R. 31 as it stoo d in earl

y 1999 in fo

ur funda me ntal particulars. First, Tenn. S. Ct. R. 31 did not authorize “binding m

edia tion” 36 as a method for c ourt-annexed alternative dispute resolution. Harris v. Hall , M2000-00784-COA-R3-CV, 2001 WL 1504893, at *4 (Tenn. Ct. App. Nov. 28, 2001) (No Tenn. R. App. P. 11 application filed). Second, the procedure actually used by the trial court bore no res emblance to a judicial settlement con ference or mediation because the parties’ decision-making rights were su

pplanted by the tria

l court, a nd there was no ap

parent e ffort to a ssist the pa

rties in reaching their own

voluntar y settleme

nt of their differe nces. 37 Third, the proceeding was conducted by the trial judge to whom the case had been assigned notwithstanding the clear re quirement

in Tenn. S. Ct. R. 31, § 2(d) thatit be “conducted by a judicial officer other than the judge before whom the case will be tried.” Fourth, the judge who conducted the alternative dispute resolution proceeding entered a final order disposing of the parties’ claims even though it did not have the autho rity to do so. Harris v. H

all , 2001 WL 1 504893, a t *5; Moxham v . Crafton , 2001 WL 468669, at *6; Environmental Abatement, Inc. v. Astrum R.E. Corp. , 27 S.W.3d at 540.
These departures are n ot just minor d eviation s from Te

nn. S. Ct. R. 3 1. Each o f them is inconsistentwith one or

more of th

e fundam ental pr inciples t hat impell ed the Te

nnessee Supreme Courtto authorize court-annexed alternative dispute resolution in the first place. They undermined the principles carefully designed to preserve the pa rties’ right of sel f-de termination. They also raised the specter

of possible repercussions for the parties who objected to re ferring the case to alternative dispute resolution or who objected to its outcome. Accord ingly, we have co ncluded t

hat these deviations are substantive and material and that they affected the outcome of this proceeding.
A judgme nt is consid

ered voi d if the record dem onstrate s that the c ourt ente ring it la cke d jur isdiction over either the subject matter or the person, or did not have the authori ty to make

th e-12-

challenged

judgment. Gentry v. Gentry , 924 S.W.2d 678, 680 (Tenn. 1996); Luster v. B argery , 55 S.W.3d 548, 550 (Tenn. Ct. App. 2000). A void judgment lacks val idity anywhere and is subject to attack from

any angle. State ex rel. Ragsdale v. Sandefur , 215 Tenn. 690, 701, 389 S.W.2d266, 271 (1965).
A trial court cannot exercise authority it has not been granted expressly o r by neces sary implication. Sou thw est Williamson County Community Ass’n v. Saltsman , 66 S.W.3d 872, 882 (Tenn. Ct. App. 2001). At the time of this proceeding, Tenn. S. Ct. R. 31 did not permit the judge who conducted the judicial settlement conference to ente r an order disposing of the ca se. Accordingly, the order

disposing o f the par

ties’ claims entered on March 19, 1999, by the judge who conducted

the mediation was void, Harris v. H all , 2001 WL 1504893, at *8, and the trial court erred when it declined to grant Intersound’s Tenn. R. Civ. P. 59.04 motion.
III. I NTERSOUND ’ S W AIVER OF I TS O PPORTUNITY TO O BJECT TO “B INDING M EDIATION ”
Team Design, Harris Graphics, and Mr. Gottliebhave declined to defend the March 19, 1999 order against Intersound’s argument that the “binding m

ediation ” proceeding wa s inconsis tent with Tenn. S. Ct. R. 31. Instead, they assert that Intersound agreed to the procedure and, therefore, tha t Intersoundwaived it s rights to insist on c omplianc e with Tenn. S. Ct. R. 31. We find this argument without me

rit for tw o reason s. First, Tenn. S. Ct. R. 31, as it exist ed in ear ly 1999, did

not permit binding mediation before the same judge who would eventually try the ca se. Se cond, even if the parties could waive their compliance with Tenn. S. Ct. R. 31, the record does not demonstrate that Intersoundknowingly and intelligently waived either compliance with Tenn . S. Ct. R. 31 o r its fundamental right to insist on a judicial resolution of its dispute.
A.
One of the most fundamental principles uponwhich our society is based is that all persons have a right to s eek judicial redr ess for injur

ies or to p rotect r ights and interestsrecognized elsewhere in the law. Like thirty-seven other states, Tennessee ha s preserv ed this rig ht in its constitution. Thus, Ten

n. Const. a

rt. I, § 17 provides : That all courts shall be open; and every man, for an inju ry done him in his lands, goo ds, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.
This provision

tracesits ance stry back to Magna Carta and sharescommon ro ots with the Law o f the Land Clause in Tenn. Const . art. I, § 8. Harrison, Pepper & C o. v. Willi s , 54 Tenn. (7 Heisk.) 35, 36 (1871); William C. Koch, Jr., Reopening Tenn essee’ s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution , 27 U. Mem. L. Rev. 333, 350-38 Other cou rts hav e reco gniz ed th e righ t of acc ess to th e cou rts as a fu nda me ntal rig ht. Aronson v. Kin sella ,

68 Cal. Rptr. 2d 305 , 310 (Ct. App. 19 97); In re Lawsuit s of Carter , 510 S. E.2d 91, 93 (Ga. Ct . App. 199 8); Webb v. Haas , 72 8 A .2d 1 261 , 126 5 (M e. 19 99) ; Steven son v. R eese , 609 N.W .2d 1 95, 1 98 ( M ich. C t. Ap p. 20 00) ; Clay v. Harrison Hill

s City Sch. Bd. of Educ. , 723 N.E .2d 1 149 , 115 3 (O hio C t. Com . Pl. 19 99)

. -13- 56 (1997). Thus, the right to a judicial remedy appropriately tak es its place with the right to due processand the r

ight to tria

l by jury in

the foundation of our legal system. 38
Tenn. Const. art. I, § 17 does not create new rights or causes of a ction butrather

providesa judicial remedy for rights and interests recog nized elsewhe re in the law. It preserves the right of accessto the courts. Accordingly, the Tennessee Supreme Court has expla inedthat all persons have a remedy by due course of law to enforc e their legal rights, Harrison v. Hender so n , 54 Tenn. ( 7 Heisk.) 3 15, 338-3 9 (1872), and that t he purpo se of Ten

n. Const. a

rt. I, § 17 is to estab lish

courts proceeding acc ording to t he cours e of

the common law, or some s ystem of well established judicature, to which all of the citizens of the state may resort for the enforcement of rights denied, or redr ess of wr ongs done

them. Staples v. Brown , 113 Tenn. 639, 644, 85 S.W. 254, 255 (1905).
We must avoid placing court-annexed alternative dispute procedu res on a c ollision co

urse with the Te

nnessee Constitution

by interp reting a nd applying Tenn. S. C t. R. 31 con sistently with Tenn. Const. art. I, § 17. See State v. B urkhart , 58 S.W.3d 694, 697-98 (Tenn. 2001) (holding that courts have a d

uty to cons true a sta

tute to av oid constitutional c onflict) ; Davis-Kidd Booksellers, Inc. v. McWherter , 866 S.W.2 d 520, 529-30 (Tenn. 1993) (holding that the courts should adopt the plausible construction that avoids undermining the statut e’s cons titutionality). We can acc omplish this task by keeping in mind that both the Tennessee Sup

reme Cour

t and its Commission on Dispute Resolution envisioned (1) that the proceedings authorized in Tenn. S. Ct. R. 31 should not be used t o supplant a judicial remedy for parties who desire one a nd (2) that the outcome of t hes e proceedings would not be final or bindi ng without the parties’ acquiescence. Acc ordingly, we conclude, as have the courts in other jurisdictions, that while the courts may require or c ompel the litigants to sit down a

nd talk wit

h each other, the y cannot force them to resolve their differe nces using alternative dis pute resolution in lieu of their judicial remedies. See, e.g., Department of Transp. v. Atlanta , 380 S.E.2d 265, 267 (Ga. 198 9); Derolph v. State , 758 N.E. 2d 1113, 11 16 (Ohio 2001); Decker v. Lindsay , 824 S.W.2d 247, 250-51 (Tex. App. 1 992); Gates v. Gates , 716 A.2d 794, 800 (Vt. 1 998); Gray v. E ggert , 635 N.W.2d 667, 671 (Wis. Ct. App. 2001).

B.
The waiver argument advanced by Tea m Design, Harris Graphics, and M r. Gottlieb presupposes that the rights being waived c an, in fa ct, be wa ived. In j udicial p

roceed ings, unlike life, noteveryth

ing is subject to negotiation. W hile litiga nts and their la

wyers ma y waive c ertain personal rights, they may not waive elemental, struct ural att ributes o f judicia

l proceedings, particularlywhen the waiver affects the public’s interest or contravene s public policy. New York v.39 State ex r el

. De p’ t of So ci al Se r vs . v. Wr ight , 736 S. W.2d 84, 85 n.2 (Ten n. 1987); First Am. Trust Co. v. Franklin-Murray Dev. Co. , 59 S.W.3d 135, 140 (Tenn. Ct. App . 2001).

40 Wa re v. M eha rry M ed. C oll. , 898 S.W .2d 1 81, 1 83- 84 ( Ten n. 19 95) ; Ha rris v. Hadden , 75 Tenn. 214, 216 (1881).

41 Quotient

or gambli ng verdi cts are not lawfulin Te nne ssee. State v. Cannon , 661 S. W.2d 893, 898 (Tenn. Crim . Ap p. 19 83) ; Mayor of Morr ist own v. I nman , 47 T enn . Ap p. 68 5, 69 4-9 5, 34 2 S.W .2d 7 1, 76 (19 60)

.
42 Rich mo nd N ewsp ape rs, Inc. v . Virgin ia , 448 U.S . 555 , 580 , 100 S. Ct. 2 814 , 282 9 (1 980 ).

43 Wheat v. United Stat es , 486 U.S. 153 , 162, 108 S. Ct. 1692 , 1698-99 (1 988).

44 Ru le 23.01(a ) of t

he Local Rules of Pra cti ce for the Ci rcui t Court , Chance ry Court , Cri minal Cour t and Pro bate Co urt of Da vidso n C oun ty ( “L oc alRu l e” ) pe rm i t t ed t he j ud ge orch an ce l l ort o wh om a case had been ass igned for trial to conducta judi cial settl ement confer ence “when r equest ed and agr eed upon by the part ies ” or when the judge or chancellor

deemed that the “ exigenc ies of t he cas e” required. Ho we ver, lo cal ru les can not c onf lict with app licable stat utes or ge nera lly ap plicab le rules issu ed b y the Ten nesse e Su prem e Co urt. Ha ckm an v . Ha rris , 225 Tenn. 645, 651, 475 S.W .2d 1 75, 1 77 ( 197 2); Bro wn v. Da ly , 884 S.W .2d 1 21, 123 -24 (Ten n. Ct. Ap p. 19 94) ; Pettus v. H urst , 882 S.W.2d 783, 786 ( Tenn. Ct. App. 1993). Thus, Loca l Rul e 23.01( a) cannot confer author it y on eit

her the part

ies or t he trial cou rts that h as no t alread y be en co nfer red b y state la w o r rule o f the T enn essee Sup rem e Co urt. -14- Hill , 528 U.S. 110, 116, 120 S. Ct. 659, 665 (2000). Circumstances arise when the cour ts must tell the litigants no, even if they have agreed to, or have even proposed, a particular course o f proceeding. Freytag v. Commissioner , 501 U.S. 868, 896, 111 S. Ct. 2631, 2648 (1991) (Scalia, J., concurring).
The courts have declined to permit the parties to alter procedure s in a number of circu mstance s. For examp le, the pa rties ca nnot agree to perm

it a trial c ourt to try

a case w hen it lacks subject matter jurisdiction. 39 They may not permit a general sessions court to adjudicate a damage claim greater than the court’smonetar

y limits. 40 They may not agree to accept a quotient or gambling v erdict. 41 They may not, in normal circumstances, agree to close a trial to the public or the pres s. 42 They cannot insist on being represented by a lawyer with an actual conflict of intere st that impairs the lawyer’s ability to conform to the ethical rules governing the profession. 43 Even if bothlitigants not onlyagree to, but themselves propose, these or other similar pr ocedure s, the cou

rts must tell them no.
As we understand the dynamics of mediation, two of its essential attributes are (1) the fact that it is non-binding and (2) that it is cond ucted by a neutral person in whom the parties may appropr iately confide informat ion about t

heir case that would otherwise not be disclosed to the other parties or the court. Condu cting a mediation be fore the judge towhom the case has been assigned is inconsistent with these attributes and is co ntra ry to Tenn . S. Ct. R. 31, § 2(c), ( d). Tenn . S. Ct. R. 31, as it s tood in ea

rly 1999, d

id not per mit the par

ties to waive the se requi

rementsand did not permit courts conducting judicial settlement conferences to enter a n order d isposing of a case. Harrisv. Hall , 2001 WL 1 504893, a t *5; Moxham v. Crafton , 2001 WL 468669, at *6 ; Environmental Abatement, Inc. v. Astrum R.E. Corp. , 27 S.W.3d at 540. Accordingly, theparties could not confer authority on the trial court that it did not have under Tenn. S. Ct. R. 31. 4445 Tenn. S. Ct. R. 31. §§ 2(e) , 20.

46 The curre nt rul e does not appear to permit

tri al court s to conductmini-trials or sum ma ry jury trials beca use Tenn. S. Ct. R. 31, §§ 23 and 24 do not conta in the same l anguage empoweri ng tri al c ourts to conduc t these pr oceedi ngs that is found in Tenn. S. Ct . R. 31, §§ 21 and 22. Thes e procee dings must st il l be c onducted by neutr al pe rson s. I n addition, Ten n. S. C t. R. 31, §§ 23 and 24 do not cont ain l anguage s imil ar t o that found i n Tenn. S. Ct. R. 31, § 20 permit ti ng a trial co urt t o wh om a case has been as signe d for t ria l t o als o conductthe a lt ernative di spute res olut ion pro ceed ing.

47 Tenn. S. Ct. R. 31, Appendix B, ¶ 15. It is uncl ear wh ether parties wh o ag ree th at the a wa rd in an arbi tra ti on proce eding un der Tenn. S. Ct. R. 31, § 21 will be final and binding have any of the l imited ri ghts to j udicialreview ava ilable u nde r the U nifo rm Arb itration Ac t. See Tenn. Code Ann. §§ 29-5-313 & -314.

48 An expre ss waive r, in contrast to an imp lied w aiver or esto ppe l, includ es an exp licit decla ration or ac ts and declarat ions manifesti ng an intent and purpose not to cl aim the supposed advantage. Reed v. Washingt on County Bd. (con tinue d...) -15- C.
Even though we have determined that in early 1999, litigants could not confer authority on trial courts to conduct binding mediation in cases assigned to them for trial, we have de cided to addressthe proc edural a spects of waiver o r agree ment in the context of

Tenn. S. Ct. R. 31 for two reasons . First, the Tennessee Supreme Court could disagree with our conclusion that the 199 9 version of Tenn. S. Ct. R. 31 did not permit the parties to empower trialcourts to conduct binding mediation in cases assigned to them for trial. Second, the Tennessee Supreme Court could disagree withour concl usio n that the 2001 amendments to Tenn. S. Ct. R . 31 do not a pply retr oactively to court-annexed

alterna tive dispu te resolution proceedings occurring prior to the effective date of the amendme nts.

Whil e we are confident that our interpretation of the 1999 ve rsion of Tenn. S. Ct. R. 3 1 i s fullysupported by the language o f the rule, we are less confident that it is consistent with the intentions behind the 2001 amendments to the rule. As we understand the current version of the rule , judicial settlement conferences remain non-binding, but the trial judge to whom the case has been assignedfor trial may now conduct the conf erence with the pa

rties’ c onsent. 45 Likewise , trial co urts may now conduct non-binding arbitrations and case evaluations but not in cases assigned to them for trial. 46 In addition, the 2001 amendments appear to permit the parties to agree that an arbitrator’s award in a “non-binding arbitration” proceeding will be “final and binding.” 47
1.
The p arties’ agreem

ent to mak

e the outc ome of a Tenn. S. Ct. R . 31 alter native di spute resolution proceeding final and binding affects their fundame ntal right of

accessto the cour

ts. Thus, because very import ant rights are at stake, the courts should strive to ensure that any agr eement terminating the litigation is actually the parties’ agreement and that the parties made the ir decision knowingly, vol u ntarily, a nd intellig ently. Thi s can bes t be acc omplished by requir

ing expre ss waivers of the rig

ht of acc ess to the courts and of the parties’ other rights under Tenn. S. Ct. R. 31. 4848 (.. .continued)

of Educ. , 756 S.W .2d 250, 255 (Tenn. 198 8).

49 The loca l rul es of

pract ice for the c ourts of re cord i n Davidson County require t he parti es’ pers onal waiver with rega rd to a gree d sum ma ry trials. L oca l Rule 24.01(a ) requires the s ubmissi on of an agr eed order that ser ves as the parties’ “certif icat ion thata w ritten agreement has been entered int o and signed by the part ies and t heir counsel acknowledgi ng that

they unde rst and tha t the cas e is being handled under this expedited format.” See al so Loc al Rules, Ap pen dix of Form s, “(Sa mp le) Ru le 24 . Ag reem ent” and “(Sam ple) Agreed O rder” (docum ents requiring the signature of both the parties and their lawyers). -16- The courts should not pr esume tha

t parties have waived their fundamental constitutional rights. State v. Blackmon , 984 S.W.2 d 589, 591 (Tenn. 199 8); State ex rel. Anglin v. Mitchell , 575 S.W.2d 284, 289 (Tenn. 1979). Thus, a finding of waiver of a fundamental right cannot be based on a silent record. State v. M

use , 967 S.W.2 d 764, 767- 68 (Tenn . 1998); Housev. State , 911 S.W.2d 705, 714 n.20 (Tenn. 199 5). For the waiver o f a funda

mental constitutiona

l right tobe effective, the record must conta

inevidence of an intentional relinquishment of a known right or privilege either in writing or on the record in open court. Momon v. State , 18 S.W.3d 152, 162 (Tenn. 1999). If the rightinvolved is person al to the p arty, it mu st be waived by the party personally. Jones v. Barnes , 463 U.S. 745, 7 51, 103 S. Ct. 3308, 3312 (1983); Momon v. State , 18 S.W.3d at 161; State v. Far , 51 S.W.3d 222, 228 (Tenn. Crim. App. 2001). 49
To assure that a waiver of the fundame ntal right of acce ss to the courts is knowing, voluntary, an d i ntelligent, the record must demonstrate, at a minimum, that parties agreeing to make the outcome of a Ten n. S. Ct. R. 31 alternative dispute resolution procedure final and binding know and understand: (1) that

they have a

right to insist that the Tenn. S. Ct. R. 31 proceeding be non-binding, (2) that they have a right to a judicial remedy i f the Ten n. S. Ct. R. 31 proceeding is unsuccessf ul, (3) that they may reject the outcome of a non-binding Tenn. S. Ct. R. 31 proceeding without fear of reprisa l, (4) that they understand that by agreeing to make the outcome of the proceeding final and binding they are waiving their right to have their dispute adjudicated by a court and that they are limiting their r ight t o have the outcome of the proceeding review ed by a court, (5) that they have consultedwith their lawyers in making the decision whether or not to waive the right of a

ccess to the courts or their rights under Tenn. S. Ct. R. 31 and that their lawyers have fully advised them of the advanta

ges and d isadvant ages o f waiving

their rights, and ( 6) that the y voluntar ily and pe rsonally waive these rig

hts. If a judicial settlement conference is to be pre sided over by the judge to whom the case has been assigned for trial, the par ties must also expressly waive their righ t to have t he conference

conducted by a judicialofficer other than the judge to whom the case has been assigned for tria l.
2.
The record in this case does not contain a transcript

of any of the proceedings before the tria l court. The after-the-fact aff idavits submitted by the parties’ lawyers regarding what transpi red at these proceedings conflict and are inadequa te substitutes for a

written a greeme nt or tran script. The only document referring the case to alterna tive dispute resolution is the February 16, 1999 order referring th e case to “binding mediation.” However, this order is substantively deficie nt for fou r reasons . First, it re

fers onl y to “bi nding mediation” – an inherently ambiguous term that is not-17-

definedin the order itself or in Tenn. S. Ct. R. 31. Second, it does not state that it is an agreed order. Third, it does not expressly state that the parties have personally agreed to forego their r ight to a trial or to insist that the proceeding be conducted by a judge other than the judge to whom the ca se had been ass igned for

trial. Fou

rth, the o rder is not signed by all the p arties a nd their la

wyers. Measured against th ese standards, th

e recor d in this ca se does not c ontain sufficient evidence to support c oncluding

that Inte rsound pe rsonally and knowingly waiv ed its righ t to a trial should the outcome of the mediation prove unsatisfactory. Accordingly, the t rial co urt erred when it denied Intersound’s m otion to alter or amend its M arch 19, 1999 orde r finally disposing o f the par

ties’ claims.
IV.
We vacate the March 19, 1999 and April 29, 19 99 orders and remand the case to the trial court for further proceedings consistent with this opinion . We tax the costs to Team Design; H arris Graphic s, Inc.; An

thony Gottl

ieb; and I

ntersound Enterta

inment, In

c. and itssurety

forwhich execution, if necessary, may issue.

_____________________________ WILLIAM C. KOCH, JR., JUDGE