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 raises important issues regarding the permissible range of court-annexed alternative

dispute resolution procedures available under Tenn. S. Ct. R. 31. The case began in the Davidson

County General Sessions Court as a dispute over payment for artwork and graphic design for a

country music album. All the parties were dissatisfied with the general sessions court’s disposition

of their claims and perfected de novo appeals to the Circuit Court for Davidson County. When a

dispute arose over the inability of two of the parties to be present on the agreed-upon trial date, the

trial court, with all parties’ agreement, entered an order referring the case to “binding mediation.”

The trial court conducted separate, off-the-record discussions with each of the parties 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 had not agreed to waive its right to a trial if the

outcome of the mediation was unsatisfactory. After the trial court denied its motion, the moving

party perfected this appeal. We have determined that the trial court lacked authority to conduct

binding mediation or to finally adjudicate the parties’ claims. Accordingly, we vacate the final

order. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and 

Remanded

WILLIAM C.KOCH,JR., J., delivered the opinion of the court, in which BEN H.CANTRELL, P.J.,M.S.,

and PATRICIA J. COTTRELL, J., joined.

S. Ralph Gordon, Nashville, Tennessee, for the appellant, Intersound Entertainment, Inc.

James H. Harris III, Nashville, Tennessee, for the appellee, Anthony Gottlieb.

Daniel B. Eisenstein, Nashville,Tennessee, for the appellees, Team Design and Harris Graphics, Inc.

OPINION

I.

Michael J. Bonagura and Kathie Baillie Bonagura perform country music in a group known

as “Baillie and the Boys.” When the transactions giving rise to this lawsuit arose, they were

managed by Anthony Gottlieb, who did business as Morningstar Management. On January 22,
1No record of this hearing has been preserved. However, the record contains affidavits by two of the

participating lawyers concerning their recollection of the hearing. The recollections of a third lawyer are contained in

an unverified response to Intersound’s Tenn. R. App. P. 59.04 motion. 

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1996, the Bonaguras signed an “Exclusive Artist Agreement” with Intersound Entertainment, Inc.

(“Intersound”), a Minnesota corporation whose principal place of business was in Roswell, Georgia.

This agreement obligated Intersound to be responsible for the artwork and graphic design for the

Baillie and the Boys albums.

With Intersound’s knowledge and consent, the Bonaguras hired Harris Graphics, Inc. and

Team Design to develop the artwork and graphics for an upcoming album called “Lovin’ Every

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 agreeing that the

Bonaguras would be responsible for paying for the artwork and graphic design for this album.

When Harris Graphics and Team Design were not paid for their work, they filed suit in the

Davidson County General Sessions Court against Intersound and Mr. Gottlieb seeking payment and

an injunction against the use of their work until they were paid. The general sessions court later

permitted Harris Graphics and Team Design to add the Bonaguras as defendants. Following a

hearing, the general sessions court granted Team Design a $4,086.75 judgment against Intersound

and the Bonaguras. It also granted Harris Graphics a $2,200 judgment against Intersound and a

$2,760 judgment against the Bonaguras.

All the parties perfected de novo appeals to the Circuit Court for Davidson County.

Thereafter, the Bonaguras filed a cross-claim against Intersound alleging that it was contractually

responsible for paying for the artwork and graphic design for the “Lovin’ Every Minute” album.

They also filed a cross-claim against Mr. Gottlieb asserting that he had violated his fiduciary duty

by sending the letter to Intersound agreeing that they would be responsible for the artwork and

graphic design for the “Lovin’ Every Minute” album. In response, Mr. Gottlieb filed a cross-claim

against the Bonaguras seeking $31,786.17 in unpaid management fees and expenses.

The trial was originally set for September 1998 but, at the trial court’s initiative, was

continued twice to February 16, 1999. Approximately one month before trial, the lawyer

representing the Bonaguras requested his fellow lawyers to agree to preserve the Bonaguras’ trial

testimony by taking their depositions because Cactus Pete’s in Jackpot, Nevada had declined to

release them from a pervious contractual commitment that conflicted with the rescheduled court

date. The lawyers agreed, and the Bonaguras’ depositions were scheduled for January 19, 1999.

However, before the depositions could be taken, Mr. Gottlieb changed his mind and insisted that the

Bonaguras be present at the trial. 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 Harris Graphics agreed to the use of the depositions at trial but

objected to another continuance.

The trial court conducted a hearing on the Bonaguras’ motion on February 5, 1999.1 After

the trial court agreed to the Bonaguras’ request for a continuance, the lawyers and the trial court
2One of the lawyers states in his unverified response to the Tenn. R. Civ. P. 59.04 motion that the parties agreed

that they would be bound by the trial court’s decision and that there would be no appeal from this decision. Neither of

the affidavits submitted by the other two lawyers contains this specific assertion.

3No record of these informal proceedings has been preserved.

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began discussing another trial date. During this discussion, the trial court offered the alternative of

“binding mediation” and stated that it would be available to conduct the mediation on March 11,

1999. The record contains no indication that the trial court informed the parties of the specific

procedures that would be used for this mediation or the legal consequences of their agreement to

participate in the mediation.2

 The lawyers for all the parties accepted the court’s offer, and on

February 16, 1999, the trial court entered an order referring the case to “binding mediation before

this Court” on March 11, 1999.

Thereafter, the trial court directed the parties to submit confidentialstatements outlining their

respective positions. When the parties returned to court on March 14, 1999,3 a clerk explained the

procedure the trial court intended to follow which consisted of separate meetings with each of the

parties and their lawyers in chambers. Over the next four hours, the trial court met separately with

each of the parties and their lawyer. 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, announced that she would make a decision and enter an [o]rder reflecting her

decision.” On March 19, 1999, the trial court entered an order awarding Team Design a $4,086.75

judgment againstIntersound and awarding Harris Graphics a $5,044.45 judgment againstIntersound.

The trial court also awarded Intersound a judgment against Mr. Gottlieb for one-third of the total

amount of Team Design’s and Harris Graphics’ judgments to be paid from moneys he received from

the “Lovin’ Every Minute” album. Likewise, the trial court awarded Intersound a judgment against

the Bonaguras for one-third of the of Team Design’s and Harris Graphics’ judgments to be paid from

the royalties generated from their “Lovin’ Every Minute” album.

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 would be the

sort of mediation authorized by Tenn. S. Ct. R. 31 in which he had previously participated in other

cases. He also asserted that he never would have agreed to mediation had he understood the

procedure that the court planned to follow. Team Design, Harris Graphics, and Mr. Gottlieb opposed

the motion. They argued (1) that all the parties had agreed to “binding mediation,” (2) that

Intersound had not objected to the procedure prior to the entry of the March 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 on April 29, 1999, denying Intersound’s post-trial motion. Intersound has perfected

this appeal.

II.

THE TRIAL COURT’S AUTHORITY TO CONDUCT BINDING MEDIATION

We turn first to the question of a Tennessee trial court’s authority to conduct “binding

mediation.” Intersound asserts that any sort of mediation conducted by a trial court in Tennessee
4Obviously, force or violence or the threat of force or violence are unacceptable procedures for resolving

disputes. Likewise, it is unlikely that the courts would recognize or enforce resolutions of disputes based on oncerecognized procedures such as compurgation, trial by combat, or trial by ordeal. 

5

Tenn. Code Ann. §§ 29-5-301, -320 (2000).

6D & E Constr. Co. v. Robert J. Denley 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 arbitration provision.”).

7

The parties’ decision to make the results of their alternative dispute resolution proceeding “binding” or “final”

reflects their intention that the issues joined and resolved in the proceeding cannot be tried again in court. M & C Corp.

v. Erwin Behn GmbH & Co., K.G., 87 F. 3d 844, 847 (6th Cir. 1996). Thus, the outcome of a “final” or “binding”

proceeding is conclusive on the parties, and the courts play only a limited role when asked to review the results of these

proceedings. Arnold v. Morgan Keegan & Co., 914 S.W.2d 445, 448 (Tenn. 1996); Vaughn v. Herndon, 91 Tenn. 64,

68, 17 S.W. 793, 794 (1891). The courts may modify or correct these decisions only in limited circumstances, see, e.g.,

Tenn. Code Ann. § 29-5-314, and they may vacate an award only on the basis of fraud, corruption, or other misconduct

by the person or persons who made the decision. Jocelyn v. Donnel, 7 Tenn. (1 Peck) 274, 275 (1823) (holding that

“[a]n award good upon the face of it can not be impeached but upon objections which go to the misbehavior of

arbitrators.”); Tenn. Code Ann. § 29-5-313; see also, Grobet File Co. of Am., Inc. v. RTC Sys., Inc., 524 N.E.2d 404,

406 (Mass. App. Ct. 1988); Motor Vehicle Acc. Indemnification Corp. v. Aetna Cas. & Sur. Co., 674 N.E. 1349, 1353-54

(N.Y. 1996). 

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must be consistent with Tenn. S. Ct. R. 31. In response, Team Design, Harris Graphics, and Mr.

Gottlieb assert that the parties and the trial court may, by agreement, agree upon an alternative

dispute procedure that does not meet all the requirements of Tenn. S. Ct. R. 31 and that the trial court

and the parties did precisely that. We have determined that all court-annexed alternative dispute

resolution procedures must be consistent with Tenn. 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 policy strongly favors resolving disputes between private parties by agreement.

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 available before they resort to litigation.

These procedures are, as a practical 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 from formal

procedures such as arbitration under Tennessee’s version of the Uniform Arbitration Act5

 to far less

formal procedures such as “splitting the difference,” flipping a coin, or, for that matter, arm

wrestling. At least with regard to formal agreements to resolve disputes, the courts will require the

parties to follow their agreed-upon dispute resolution procedure as long as they are competent and

are dealing at arm’s length.6 When the parties have agreed to be bound by the outcome of their

agreed-upon procedure, the courts will require them to accept the result by declining 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 procedure to resolve their disputes

narrows considerably once they submit their dispute to the courts for resolution. Judicial
8

Tenn. R. Civ. P. 16 permitted trial courts to conduct pre-trial conferences, but these conferences were limited

to matters affecting the efficiency of the trial. While some trial courts may have, on occasion, informally recommended

settlement rather than litigation, this practice was neither uniform nor prevalent.

9

The amendments to Tenn. R. Civ. P. 16 tracked the recommendations contained in the June 1994 report of

the Tennessee Supreme Court Commission which, in turn, reflected the 1983 revisions to Fed. R. Civ. P. 16. Report

of Tennessee Supreme Court Comm’n on Dispute Resolution 16-20 (June 1994) (“ADR Report”).

10Penny J. White, Yesterday’s Vision, Tomorrow’s Challenge: Case Management and Alternative Dispute

Resolution in Tennessee, 26 U. Mem. L. Rev. 957, 959 (1996) (“White”). 

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

12Tenn. S. Ct. R. 31, § 11(a) (1995). This section was renumbered as Tenn. S. Ct. R. 31, § 10(a) in 1996 but

was removed from Tenn. S. Ct. R. 31 when the Tennessee Supreme Court rewrote the rule in 2001.

13Tenn. S. Ct. R. 31, § 3 (1995).

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proceedings must be conducted in accordance with the ancient common-law rules, applicable

constitutional principles, statutes, and court rules. 

In Tennessee 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 express authority

to provide judicial oversight over pending cases other than the sort of oversight traditionally

provided by American judges.

8

 They certainly did not have express authority to offer or require the

use of alternative dispute resolution procedures. This changed on July 1, 1995, when amendments

to Tenn. R. Civ. P. 16 greatly expanded the trial courts’ case management authority.9 For the first

time, Tenn. R. Civ. P. 16.03(7) specifically empowered trial courts to discuss “the possibility of

settlement or the use of extrajudicial procedures, including alternative dispute resolution, to resolve

the dispute.” These amendments did not, however, empower trial courts to require the parties to

engage in any sort of alternative dispute resolution procedure or to participate in any such procedure

themselves. These changes were to come five months later.

On December 18, 1995, the Tennessee Supreme Court filed Tenn. S. Ct. R. 31 establishing

procedures for court-annexed alternative dispute resolution in Tennessee’s trial courts. Like the

amendments to Tenn. R. Civ. P. 16, Tenn. S. Ct. R. 31 was based in large part on the

recommendations contained in the June 1994 report of the Tennessee Supreme Court Commission

on Dispute Resolution. The original version of the rule represented an incremental approach10 to

court-annexed alternative dispute resolution. The procedures permitted by Tenn. 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 procedures became available only

after “all parties are before the court.”12 At that time, any or all of the parties could request

authorization to engage in an alternative dispute resolution procedure.13 The rule also permitted the

trial court, even without the parties’ request or consent but after consultation with the lawyers and
14Tenn. S. Ct. R. 31, § 11(b) (1995) required prior consultation to determine whether the dispute was amenable

to alternative dispute resolution and, if so, which method would be most appropriate. However, Tenn. S. Ct. R. 31, §

3(b) now dispenses with the prior consultation requirement and empowers trial courts to enter “standing orders”

requiring all cases to be referred to one of three methods of alternative dispute resolution.

15Tenn. S. Ct. R. 31, § 3 (1995). This provision is now found in Tenn. S. Ct. R. 31, § 3(b).

16Tenn. S. Ct. R. 31, § 3 (1995). This provision is now found in Tenn. S. Ct. R. 31, § 3(d). Tenn. S. Ct. R. 31,

§§ 23 and 24 also make clear that trial courts may provide for mini-trials and summary jury trials “only with the consent

of the parties.”

17ADR Report, at 44.

18Alternative dispute resolution experts repeatedly emphasize that voluntariness and self-determination are

essential ingredients of mediation and that parties must remain free to reject the process or its outcomes without

repercussions. John W. Cooley, Mediation Advocacy § 1.1 (1996); see also Thomas R. McCoy, The Sophisticated

Consumer’s Guide to Alternative Dispute Resolution Techniques: What You Should Expect (or Demand) From ADR

Services, 26 U. Mem. L. Rev. 975, 979-983 (1996) (“McCoy”); John Reerick, et al., Standards of Professional Conduct

in Alternative Dispute Resolution, 1995 J. Disp. Resol. 95, 117; Lawrence M. Watson, Jr., Advice and Opinions From

Mediators: A Rational Analysis, 13 Resol. Rep. 13, 14 (Jan. 1998). 

19Tenn. S. Ct. R. 31, § 2(c) (1995). The same definition of mediation is currently found in Tenn. S. Ct. R. 31,

§ 2(f).

20Tenn. S. Ct. R. 31, § 2(e) (1995). The same definition of non-binding arbitration is currently found in Tenn.

S. Ct. R. 31, § 2(h). In its 2001 revisions to Tenn. S. Ct. R. 31, the Tennessee Supreme Court added a new section

specifically empowering trial courts to “conduct Non-Binding Arbitration in accordance with procedures to be

developed by Local Rule, by Standing Order or in consultation with the parties.” Tenn. S. Ct. R. 31, § 21. The court

attached to the amended rule “Appendix B” consisting of a “template form of order for consideration and possible use

(continued...)

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the parties,14 to require the parties to participate in a judicial settlement conference, a mediation, or

a case evaluation.15 In addition, with the consent of all parties, the trial court could refer the case for

“non-binding arbitration, mini-trial, summary jury trial, or other appropriate alternative dispute

resolution proceedings.”16

The original version of Tenn. S. Ct. R. 31, like the current version, specifically defined each

of the alternative dispute resolution methods contemplated by the rule. Consistent with the

Commission’s recommendation that court-annexed alternative dispute proceedings should be nonbinding,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 any third party who would make the decision for them.

The fact that all proposed alternative dispute resolution methods are non-binding is an

essential attribute of the court-annexed procedures permitted by Tenn. S. Ct. R. 31.18 The rule

specifically defines mediation as “an informal process in which a neutral person . . . conducts

discussions among the disputing parties designed to enable them to reach a mutually acceptable

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 “case evaluation” is advisory only; a “mini-trial”
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-Binding Arbitration” in Appendix B appears to permit the parties to “stipulate” that the award

reached in the “non-binding arbitration” shall be “final and binding.” We need not address in this case how a nonbinding arbitration can result in a “final and binding” award because the 2001 revisions to Tenn. S. Ct. R. 31 do not

govern this proceeding which took place in 1999. The 2001 revisions have prospective effect only. Steiner-Liff Iron

& Metal Co. v. Woodmont Country Club, 480 S.W.2d 533, 540 (Tenn. 1972). 

21Tenn. S. Ct. R. 31, § 2(g) (1995). This provision now appears in Tenn. S. Ct. R. 31, § 2(g).

22Tenn. S. Ct. R. 31, § 2(h) (1995). This provision now appears in Tenn. S. Ct. R. 31, § 2(m).

23Tenn. S. Ct. R. 31, Appendix, § (1)(d)(6). The principle of self-determination now appears in Tenn. S. Ct.

R. 31, Appendix A, § 1(c)(6).

24See also Donovan Leisure Newton & Irvine, ADR Practice Book 468 (John H. Wilkinson ed. 1990); Amanda

K. Esquibel, The Case of the Conflicted Mediator: An Argument For Liability and Against Immunity, 31 Rutgers L.J.

131, 134 (1999).

25Tenn. S. Ct. R. 31, § 2(i) (1995). In its 2001 amendments, the court replaced the term “dispute resolution

neutral” with “Rule 31 Neutral.” Tenn. S. Ct. R. 31, § 2(l).

26In its 2001 amendments to Tenn. S. Ct. R. 31, the Tennessee Supreme Court replaced the word “mediator”

with the word “Neutral.” Tenn. S. Ct. R. 31, Appendix A.

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envisions that “the parties or their representatives [will] seek a negotiated settlement of the

dispute;”21 and a “summary jury trial” envisions only an “advisory verdict” followed by a

“negotiated settlement.”22 In 1996, the Tennessee Supreme Court reaffirmed that all court-annexed

alternative dispute resolution proceedings permitted by Tenn. S. Ct. R. 31 were premised on the

principle of “self-determination.”23

Another essential attribute of alternative dispute resolution is the neutrality and impartiality

of the mediators, arbitrators, or other neutral persons conducting the process. Poly Software 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 revealed); Howard v. Drapkin, 271 Cal. Rptr. 893, 902 (Ct. App. 1990)

(observing that the job of third parties such as mediators, conciliators and evaluators involves

impartiality 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 Professional Conduct for Rule 31 Mediators adopted by the Tennessee Supreme

Court on September 26, 1996, which state that “[i]ntegrity, impartiality, and professional

competence are essential qualifications of any mediator.” Tenn. S. Ct. R. 31, Appendix A, § (2)(a).26

A third essential attribute of the court-annexed procedures permitted by Tenn. S. Ct. R. 31

is confidentiality. All parties in a mediation proceeding trust that the proceeding will be confidential

because these proceedings permit them to “bare their soul” to the mediator and provide them the

opportunity to vent which, in some instances, is all that stands in the way of a negotiated settlement.
27The same provision appeared in the 1996 revision of Tenn. S. Ct. R. 31. However, the Tennessee Supreme

Court removed the provision in the 2001 version of the rule. Tenn. S. Ct. R. 31, § 7 now provides that “[e]vidence of

conduct or statements made in the course of Rule 31 ADR Proceedings and other proceedings conducted pursuant to

an Order of Reference shall be inadmissible to the same extent as conduct or statements are inadmissible under Tenn.

R. Evid. 408.” 

28Tenn. S. Ct. R. 31, Appendix A(1)(a) (1996). This provision now appears at Tenn. S. Ct. R. 31, Appendix

A, § 1(a).

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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 confidentiality is necessary:

If participants cannot rely on the confidential treatment of everything

that transpires during [mediation] sessions then counsel of necessity

will feel constrained to conduct themselves in a cautious, tight-lipped,

non-committal manner more suitable to poker players in a high-stakes

game than to adversaries attempting to arrive at a just resolution of a

civil dispute. This atmosphere if allowed to exist would surely

destroy the effectiveness of a program which has led to settlements

. . ., thereby expediting cases at a time when . . . judicial resources .

. . are sorely taxed.

Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 930 (2d Cir. 1979).

Accordingly, a vast majority of the proponents of alternative dispute resolution view confidentiality

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); Joshua J. Engelhart, Note, Federal Mediation Privilege: Should Mediator

Communications Be Protected From Subsequent Civil and Criminal Proceedings: In re Grand Jury

Subpoena Dated December 17, 1996, 1999 J. Disp. Resol. 73, 73 (1999); Kenneth R. Feinberg,

Mediation – A Preferred Method of Dispute Resolution, 16 Pepp. L. Rev. S5, S29 (1989); Cheryl

L. Baber, Alternative Dispute Resolution In the Twenty-First Century: Alternative Dispute

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 importance of confidentiality when it first

authorized court-annexed alternative dispute resolution. Tenn. S. Ct. R. 31, § 6 (1995) required that

a “mediator, settlement judge, or other dispute resolution neutral shall preserve and maintain the

confidentiality of all alternative dispute resolution proceedings except where required by law to

disclose the information.”27 The Tennessee Supreme Court issued the Standards of Professional

Conduct for Rule 31 Mediators in September 1996 to “instill and promote public confidence in the

[a]lternative [d]ispute [r]esolution process under Rule 31.”28 These standards reinforced the

importance of confidentiality by stating that proceedings under Tenn. S. Ct. R. 31 were based on the
29Tenn. S. Ct. R. 31, Appendix A(1)(d)(4) (1996). This provision now appears at Tenn. S. Ct. R. 31, Appendix

A, § 1(c)(4).

30Tenn. S. Ct. R. 31, Appendix A(7)(a) (1996). In its 2001 revision to the rule, the Tennessee Supreme Court

replaced this language with the following: “A Neutral shall preserve and maintain the confidentiality of all dispute

resolution proceedings except where required by law to disclose information.” Tenn. S. Ct. R., Appendix A, § 7(a).

The court also required that neutrals “[p]reserve and maintain the confidentiality of all information obtained during Rule

31 ADR Proceedings and shall not divulge information obtained by them during the course of Rule 31 ADR proceedings

without the consent of the parties, except as otherwise may be required by law.” 

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

32A judicial settlement conference is nothing more than mediation conducted by a “judicial officer.” Tenn.

S. Ct. R. 31, § 2(d) (1995). This definition now appears at Tenn. S. Ct. R. 31, § 2(e). Prior to 2001, all other Tenn. S.

Ct. R. 31 alternative dispute resolution proceedings, case evaluations, mediations, mini-trials, non-binding arbitrations,

and summary jury trials, were presided over by either a “neutral person” or a “neutral panel.” While these terms were

not defined, consideration of the entire text of Tenn. S. Ct. R. 31 clearly demonstrates that the court envisioned that

“neutral persons” would include lawyers and non-lawyers who were not active judges. See Tenn. S. Ct. R. 31, § 5

(1996) (immunity of neutrals); Tenn. S. Ct. R. 31, §§ 7, 12(d) & Appendix A(9)(a) (1996) (compensation of neutrals);

Tenn. S. Ct. R. 31, § 13 (1996) (qualification of neutrals); Tenn. S. Ct. R. 31, § 16 (1996) (pro bono requirements for

neutrals); and Tenn. S. Ct. R. 31, Appendix A(12) (advertising by neutrals). These provisions now appear in Tenn. S.

Ct. R. 31, §§ 8, 12, 13, 18(d), and Appendix A, § 9(a) & 12. However, Tenn. S. Ct. R. 31, §§ 21 and 22 now explicitly

permit trial judges to conduct non-binding arbitration and case evaluation proceedings. Because similar language does

not appear in Tenn. S. Ct. R. 31, §§ 23 and 24, neutral persons, not trial judges, must apparently still conduct mini-trials

and summary jury trials.

33Tenn. S. Ct. R. 31, § 2(d). This provision now appears at Tenn. S. Ct. R. 31, § 2(e). However, in its 2001

revisions to Tenn. S. Ct. R. 31, the court, for the first time, permitted the judge to whom the case had been assigned for

trial to conduct the judicial settlement conference with the parties’ consent. Tenn. S. Ct. R. 31, § 20. The same may

not hold true for non-binding arbitrations, case evaluations, mini-trials, or summary jury trials because Tenn. S. Ct. R.

31, §§ 21, 22, 23, and 24 do not contain similar language. Tenn. S. Ct. R. 31, § 20 does not apply to this case because

the 2001 amendments to Tenn. S. Ct. R. 31 are prospective only and could not have applied to an already concluded

mediation. 

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principles of “privacy and confidentiality”29 and that “mediator[s] shall preserve and maintain the

confidentiality of all mediation proceedings except where required by law to disclose information.”30

The principles of self-determination, neutrality, and confidentiality influenced the Tennessee

Supreme Court’s view of the role trial judges should properly play in court-annexed alternative

dispute resolution proceedings. While the court gave trial courts the authority to require litigants,

with or without their consent, to participate in a case evaluation, mediation, or judicial settlement

conference,31 the court carefully limited the trial court’s role in these proceedings. First, the court

permitted trial judges to participate only in judicial settlement conferences. All other proceedings

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

settlement conferences, the court stated clearly 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.”33
34The bias problems flowing from permitting a trial court to be privy to mediation proceedings is dramatically

illustrated by this court’s recent decision vacating a $1,750,000 verdict because the trial court’s comments indicated that

it had not properly discharged its duty as thirteenth juror and that it was biased against one of the parties and its

insurance company. The trial court, believing that a recalcitrant insurance company had declined to make a reasonable

settlement offer, stated on the record that he had discussed the pretrial settlement conference with the judge who had

conducted it and that the judge had stated that “[i]t was his feeling that had he been able to coerce a reasonable offer,

that the plaintiff would have been coerced to take a reasonable offer.” Davidson v. Lindsey, No. W2000-02891-COAR3-CV, 2002 Tenn. App. LEXIS 344, at *14-15, 18 (Tenn. Ct. App. May 6, 2002) (Tenn. R. App. P. 11 application

pending).

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The policy reasons for not permitting the trial judge who could eventually try the case to

preside over the mediation or other alternative dispute resolution procedure permitted 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. Environmental Abatement, Inc. v. Astrum R.E. Corp., 27

S.W.3d 530, 540 (Tenn. Ct. App. 2000); Moxhamv.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 parties to freely disclose their

intentions, desires, and the strengths and weaknesses of their case” with the neutral. Poly Software

Int’l, Inc. v. Su, 880 F. Supp. at 1494; see also Peter Demuth, Theories for Protecting Mediation,

reprinted in Confidentiality in Mediation: A Practitioner’s Guide 155-164 (American Bar Ass’n,

1985). Thus, a judge conducting a settlement conference becomes a confidant of the parties, 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, knowledge gained in a prior judicial proceeding is not a sufficient ground to

require the recusal or disqualification of a trial judge in a later judicial proceeding. Liteky v. United

States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (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 imparted during a mediation is not the sort of information that would normally be

disclosed to the other parties or the court. Accordingly, should the judge who conducts the judicial

settlement conference later be called upon to decide the issues of liability or damages, it is

impossible to avoid questions as to whether he or she can disregard the matters disclosed during 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); Enterprise 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); Schellin v. North

Chinook Irrigation Ass’n, 848 P.2d 1043, 1045 (Mont. 1993); Craig v. Walker, 824 P.2d 1131,

1131-32 (Okla. 1992).34

The Tennessee Supreme Court recognized these confidentiality and predisposition concerns

in its September 1996 revisions to Tenn. S. Ct. R. 31. The court added a provision to the rule

stating:

A person serving as a Rule 31 dispute resolution neutral in an

alternative dispute resolution proceeding shall not participate as

attorney, advisor, judge, guardian ad litem, master or in any other
35Tenn. S. Ct. R. 31, § 10(c)(1) does not appear to apply to judicial settlement conferences in light of Tenn.

S. Ct. R. 31, § 20 which permits trial courts, with the parties’ agreement, to conduct judicial settlement conferences in

cases they have been assigned to try.

36The notion of binding mediation is, in the words of one alternative dispute resolution expert, an “oxymoron.”

Wayne D. Brazil, Comparing Structures For the Delivery of ADR Services by Courts: Critical Values and Concerns,

14 Ohio St. J. on Disp. Resol. 715, 719 n.3 (1999); see also, McCoy, 26 U. Mem. L. Rev. at 989-990 (observing that

ADR nomenclature is “frequently confusing” and occasionally “downright misleading”).

37This court recently observed that a similar procedure amounting to nothing more than the ex parte reception

of evidence is neither mediation or any other authorized form of alternative dispute resolution envisioned 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. App. P. 11 application filed).

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judicial or quasi-judicial capacity 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 mediation” proceeding at issue in this case did not comply with Tenn. S. Ct.

R. 31 as it stood in early 1999 in four fundamental particulars. First, Tenn. S. Ct. R. 31 did not

authorize “binding mediation”36 as amethod for court-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 resemblance to a judicialsettlement conference or mediation because the parties’ decision-making

rights were supplanted by the trial court, and there was no apparent effort to assist the parties in

reaching their own voluntary settlement of their differences.37 Third, the proceeding was conducted

by the trial judge to whom the case had been assigned notwithstanding the clear requirement in Tenn.

S. Ct. R. 31, § 2(d) that it 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 authority to do

so. Harris v. Hall, 2001 WL 1504893, at *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 not just minor deviations from Tenn. S. Ct. R. 31. Each of them is

inconsistent with one or more of the fundamental principles that impelled the Tennessee Supreme

Court to authorize court-annexed alternative dispute resolution in the first place. They undermined

the principles carefully designed to preserve the parties’ right of self-determination. They also raised

the specter of possible repercussions for the parties who objected to referring the case to alternative

dispute resolution or who objected to its outcome. Accordingly, we have concluded that these

deviations are substantive and material and that they affected the outcome of this proceeding.

A judgment is considered void if the record demonstrates that the court entering it lacked

jurisdiction over either the subject matter or the person, or did not have the authority to make the
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challenged judgment. Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996); Luster v. Bargery, 55

S.W.3d 548, 550 (Tenn. Ct. App. 2000). A void judgment lacks validity anywhere and is subject

to attack from any angle. State ex rel. Ragsdale v. Sandefur, 215 Tenn. 690, 701, 389 S.W.2d 266,

271 (1965).

A trial court cannot exercise authority it has not been granted expressly or by necessary

implication. Southwest 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 enter an order disposing of the case.

Accordingly, the order disposing of the parties’ claims entered on March 19, 1999, by the judge who

conducted the mediation was void, Harris v. Hall, 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.

INTERSOUND’S WAIVER OF ITS OPPORTUNITY TO OBJECT TO “BINDING MEDIATION”

Team Design, Harris Graphics, and Mr. Gottlieb have declined to defend the March 19, 1999

order against Intersound’s argument that the “binding mediation” proceeding was inconsistent with

Tenn. S. Ct. R. 31. Instead, they assert that Intersound agreed to the procedure and, therefore, that

Intersound waived its rights to insist on compliance with Tenn. S. Ct. R. 31. We find this argument

without merit for two reasons. First, Tenn. S. Ct. R. 31, as it existed in early 1999, did not permit

binding mediation before the same judge who would eventually try the case. Second, even if the

parties could waive their compliance with Tenn. S. Ct. R. 31, the record does not demonstrate that

Intersound knowingly and intelligently waived either compliance with Tenn. S. Ct. R. 31 or its

fundamental right to insist on a judicial resolution of its dispute.

A.

One of the most fundamental principles upon which our society is based is that all persons

have a right to seek judicial redress for injuries or to protect rights and interests recognized elsewhere

in the law. Like thirty-seven other states, Tennessee has preserved this right in its constitution.

Thus, Tenn. Const. art. I, § 17 provides:

That all courts shall be open; and every man, for an injury

done him in his lands, goods, person or reputation, shall have remedy

by due course of law, and right and justice administered without sale,

denial, or delay.

This provision traces its ancestry back to Magna Carta and shares common roots with the Law of

the Land Clause in Tenn. Const. art. I, § 8. Harrison, Pepper & Co. v. Willis, 54 Tenn. (7 Heisk.)

35, 36 (1871); William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A Historical

Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 350-
38Other courts have recognized the right of access to the courts as a fundamental right. Aronson v. Kinsella,

68 Cal. Rptr. 2d 305, 310 (Ct. App. 1997); In re Lawsuits of Carter, 510 S.E.2d 91, 93 (Ga. Ct. App. 1998); Webb v.

Haas, 728 A.2d 1261, 1265 (Me. 1999); Stevenson v. Reese, 609 N.W.2d 195, 198 (Mich. Ct. App. 2000); Clay v.

Harrison Hills City Sch. Bd. of Educ., 723 N.E.2d 1149, 1153 (Ohio Ct. Com. Pl. 1999). 

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56 (1997). Thus, the right to a judicial remedy appropriately takes its place with the right to due

process and the right to trial by jury in the foundation of our legal system.38

Tenn. Const. art. I, § 17 does not create new rights or causes of action but rather provides a

judicial remedy for rights and interests recognized elsewhere in the law. It preserves the right of

access to the courts. Accordingly, the Tennessee Supreme Court has explained that all persons have

a remedy by due course of law to enforce their legal rights, Harrison v. Henderson, 54 Tenn. (7

Heisk.) 315, 338-39 (1872), and that the purpose of Tenn. Const. art. I, § 17 is to establish

courts proceeding according to the course of the common law, or

some system of well established judicature, to which all of the

citizens of the state may resort for the enforcement of rights denied,

or redress of wrongs done them.

Staples v. Brown, 113 Tenn. 639, 644, 85 S.W. 254, 255 (1905). 

We must avoid placing court-annexed alternative dispute procedures on a collision course

with the Tennessee Constitution by interpreting and applying Tenn. S. Ct. R. 31 consistently with

Tenn. Const. art. I, § 17. See State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn. 2001) (holding that

courts have a duty to construe a statute to avoid constitutional conflict); Davis-Kidd Booksellers, Inc.

v. McWherter, 866 S.W.2d 520, 529-30 (Tenn. 1993) (holding that the courts should adopt the

plausible construction that avoids undermining the statute’s constitutionality). We can accomplish

this task by keeping in mind that both the Tennessee Supreme Court and its Commission on Dispute

Resolution envisioned (1) that the proceedings authorized in Tenn. S. Ct. R. 31 should not be used

to supplant a judicial remedy for parties who desire one and (2) that the outcome of these

proceedings would not be final or binding without the parties’ acquiescence. Accordingly, we

conclude, as have the courts in other jurisdictions, that while the courts may require or compel the

litigants to sit down and talk with each other, they cannot force them to resolve their differences

using alternative dispute resolution in lieu of their judicial remedies. See, e.g., Department of

Transp. v. Atlanta, 380 S.E.2d 265, 267 (Ga. 1989); Derolph v. State, 758 N.E.2d 1113, 1116 (Ohio

2001); Decker v. Lindsay, 824 S.W.2d 247, 250-51 (Tex. App. 1992); Gates v. Gates, 716 A.2d 794,

800 (Vt. 1998); Gray v. Eggert, 635 N.W.2d 667, 671 (Wis. Ct. App. 2001). 

B.

The waiver argument advanced by Team Design, Harris Graphics, and Mr. Gottlieb

presupposes that the rights being waived can, in fact, be waived. In judicial proceedings, unlike life,

not everything is subject to negotiation. While litigants and their lawyers may waive certain

personal rights, they may not waive elemental, structural attributes of judicial proceedings,

particularly when the waiver affects the public’s interest or contravenes public policy. New York v.
39State ex rel. Dep’t of Social Servs. v. Wright, 736 S.W.2d 84, 85 n.2 (Tenn. 1987); First Am. Trust Co. v.

Franklin-Murray Dev. Co., 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001).

40Ware v. Meharry Med. Coll., 898 S.W.2d 181, 183-84 (Tenn. 1995); Harris v. Hadden, 75 Tenn. 214, 216

(1881).

41Quotient or gambling verdicts are not lawful in Tennessee. State v. Cannon, 661 S.W.2d 893, 898 (Tenn.

Crim. App. 1983); Mayor of Morristown v. Inman, 47 Tenn. App. 685, 694-95, 342 S.W.2d 71, 76 (1960). 

42Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S. Ct. 2814, 2829 (1980). 

43Wheat v. United States, 486 U.S. 153, 162, 108 S. Ct. 1692, 1698-99 (1988).

44Rule 23.01(a) of the Local Rules of Practice for the Circuit Court, Chancery Court, Criminal Court and

Probate Court of Davidson County (“Local Rule”) permitted the judge or chancellor to whom a case had been assigned

for trial to conduct a judicial settlement conference “when requested and agreed upon by the parties” or when the judge

or chancellor deemed that the “exigencies of the case” required. However, local rules cannot conflict with applicable

statutes or generally applicable rules issued by the Tennessee Supreme Court. Hackman v. Harris, 225 Tenn. 645, 651,

475 S.W.2d 175, 177 (1972); Brown v. Daly, 884 S.W.2d 121, 123 -24 (Ten n. Ct. App. 1994); Pettus v. Hurst, 882

S.W.2d 783, 786 (Tenn. Ct. App. 1993). Thus, Local Rule 23.01(a) cannot confer authority on either the parties or the

trial courts that has not already been conferred by state law or rule of the Tennessee Supreme Court. 

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Hill, 528 U.S. 110, 116, 120 S. Ct. 659, 665 (2000). Circumstances arise when the courts must tell

the litigants no, even if they have agreed to, or have even proposed, a particular course of

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 procedures in a number of

circumstances. For example, the parties cannot agree to permit a trial court to try a case when it

lacks subject matter jurisdiction.39 They may not permit a general sessions court to adjudicate a

damage claim greater than the court’s monetary limits.40 They may not agree to accept a quotient

or gambling verdict.41 They may not, in normal circumstances, agree to close a trial to the public

or the press.42 They cannot insist on being represented by a lawyer with an actual conflict of interest

that impairs the lawyer’s ability to conform to the ethical rules governing the profession.43 Even if

both litigants not only agree to, but themselves propose, these or other similar procedures, the courts

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 conducted by a neutral person in whom the parties may

appropriately confide information about their case that would otherwise not be disclosed to the other

parties or the court. Conducting a mediation before the judge to whom the case has been assigned

is inconsistent with these attributes and is contrary to Tenn. S. Ct. R. 31, § 2(c), (d). Tenn. S. Ct.

R. 31, as it stood in early 1999, did not permit the parties to waive these requirements and did not

permit courts conducting judicial settlement conferences to enter an order disposing of a case.

Harris v. Hall, 2001 WL 1504893, at *5; Moxham v. Crafton, 2001 WL 468669, at *6;

Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d at 540. Accordingly, the parties

could not confer authority on the trial court that it did not have under Tenn. S. Ct. R. 31.44
45Tenn. S. Ct. R. 31. §§ 2(e), 20.

46The current rule does not appear to permit trial courts to conduct mini-trials or summary jury trials because

Tenn. S. Ct. R. 31, §§ 23 and 24 do not contain the same language empowering trial courts to conduct these proceedings

that is found in Tenn. S. Ct. R. 31, §§ 21 and 22. These proceedings must still be conducted by neutral persons. In

addition, Tenn. S. Ct. R. 31, §§ 23 and 24 do not contain language similar to that found in Tenn. S. Ct. R. 31, § 20

permitting a trial court to wh om a case has been assigned for trial to also conduct the alternative dispute resolution

proceeding. 

47Tenn. S. Ct. R. 31, Appendix B, ¶ 15. It is unclear whether parties who agree that the award in an arbitration

proceeding under Tenn. S. Ct. R. 31, § 21 will be final and binding have any of the limited rights to judicial review

available under the Uniform Arbitration Act. See Tenn. Code Ann. §§ 29-5-313 & -314.

48An express waiver, in contrast to an implied waiver or estoppel, includes an explicit declaration or acts and

declarations manifesting an intent and purpose not to claim the supposed advantage. Reed v. Washington County Bd.

(continued...)

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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 decided to

address the procedural aspects of waiver or agreement in the context of Tenn. S. Ct. R. 31 for two

reasons. First, the Tennessee Supreme Court could disagree with our conclusion that the 1999

version of Tenn. S. Ct. R. 31 did not permit the parties to empower trial courts to conduct binding

mediation in cases assigned to them for trial. Second, the Tennessee Supreme Court could disagree

with our conclusion that the 2001 amendments to Tenn. S. Ct. R. 31 do not apply retroactively to

court-annexed alternative dispute resolution proceedings occurring prior to the effective date of the

amendments.

While we are confident that our interpretation of the 1999 version of Tenn. S. Ct. R. 31 is

fully supported by the language of 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

assigned for trial may now conduct the conference with the parties’ consent.45 Likewise, trial courts

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 parties’ agreement to make the outcome of a Tenn. S. Ct. R. 31 alternative dispute

resolution proceeding final and binding affects their fundamental right of access to the courts. Thus,

because very important rights are at stake, the courts should strive to ensure that any agreement

terminating the litigation is actually the parties’ agreement and that the parties made their decision

knowingly, voluntarily, and intelligently. This can best be accomplished by requiring express

waivers of the right of access to the courts and of the parties’ other rights under Tenn. S. Ct. R. 31.48
48(...continued)

of Educ., 756 S.W.2d 250, 255 (Tenn. 1988).

49The local rules of practice for the courts of record in Davidson County require the parties’ personal waiver

with regard to agreed summary trials. Local Rule 24.01(a) requires the submission of an agreed order that serves as the

parties’ “certification that a written agreement has been entered into and signed by the parties and their counsel

acknowledging that they understand that the case is being handled under this expedited format.” See also Local Rules,

Appendix of Forms, “(Sample) Rule 24. Agreement” and “(Sample) Agreed Order” (documents requiring the signature

of both the parties and their lawyers).

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The courts should not presume that parties have waived their fundamental constitutional

rights. State v. Blackmon, 984 S.W.2d 589, 591 (Tenn. 1998); 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. Muse, 967 S.W.2d 764, 767-68 (Tenn. 1998); House v. State, 911 S.W.2d

705, 714 n.20 (Tenn. 1995). For the waiver of a fundamental constitutional right to be effective, the

record must contain evidence 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

right involved is personal to the party, it must be waived by the party personally. Jones v. Barnes,

463 U.S. 745, 751, 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 fundamental right of access to the courts is knowing, voluntary,

and intelligent, the record must demonstrate, at a minimum, that parties agreeing to make the

outcome of a Tenn. 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 if the Tenn. S. Ct. R. 31 proceeding is unsuccessful,

(3) that they may reject the outcome of a non-binding Tenn. S. Ct. R. 31 proceeding without fear of

reprisal, (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 right to have the outcome of the proceeding reviewed by a court, (5) that they have

consulted with their lawyers in making the decision whether or not to waive the right of access to

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

the advantages and disadvantages of waiving their rights, and (6) that they voluntarily and personally

waive these rights. If a judicial settlement conference is to be presided over by the judge to whom

the case has been assigned for trial, the parties must also expressly waive their right to have the

conference conducted by a judicial officer other than the judge to whom the case has been assigned

for trial.

2.

The record in this case does not contain a transcript of any of the proceedings before the trial

court. The after-the-fact affidavits submitted by the parties’ lawyers regarding what transpired at

these proceedings conflict and are inadequate substitutes for a written agreement or transcript. The

only document referring the case to alternative dispute resolution is the February 16, 1999 order

referring the case to “binding mediation.” However, this order is substantively deficient for four

reasons. First, it refers only to “binding mediation” – an inherently ambiguous term that is not
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defined in 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 right to a trial

or to insist that the proceeding be conducted by a judge other than the judge to whom the case had

been assigned for trial. Fourth, the order is not signed by all the parties and their lawyers.

Measured against these standards, the record in this case does not contain sufficient evidence

to support concluding that Intersound personally and knowingly waived its right to a trial should the

outcome of the mediation prove unsatisfactory. Accordingly, the trial court erred when it denied

Intersound’s motion to alter or amend its March 19, 1999 order finally disposing of the parties’

claims. 

IV.

We vacate the March 19, 1999 and April 29, 1999 orders and remand the case to the trial

court for further proceedings consistent with this opinion. We tax the costs to Team Design; Harris

Graphics, Inc.; Anthony Gottlieb; and Intersound Entertainment, Inc. and its surety for which

execution, if necessary, may issue.

_____________________________

WILLIAM C. KOCH, JR., JUDGE