MAY THE MEDIATOR DRAFT THE COURT-FILING DOCUMENTS?

Procedural posture and result

Advisory-opinion request concerning the boundary between memorializing settlement terms and acting as a lawyer by preparing documents for court. RESULT: The Commission advised that a mediator may help memorialize terms in a memorandum of understanding, but should not prepare the marital dissolution agreement or other legal filing. Counsel—or self-represented parties themselves—must prepare the documents needed for court.

What happened and what the authority decided

The Tennessee Alternative Dispute Resolution Commission was asked whether a Rule 31 listed mediator could draft a marital dissolution agreement or another legal document for presentation to court after the parties reached agreement.

The Commission advised that a mediator may help memorialize terms in a memorandum of understanding, but should not prepare the marital dissolution agreement or other legal filing. Counsel—or self-represented parties themselves—must prepare the documents needed for court.

What this tells the mediator

A neutral may serve as a careful recorder without becoming either party’s lawyer. The line turns on the governing rules, the document’s function, and whether drafting requires legal choices for the parties.

Practical guidance

• Explain the mediator’s drafting limits before agreement work begins.
• Use neutral language that accurately records terms chosen by the parties.
• Do not select legal provisions or remedies for either side.
• Direct represented parties to counsel for filing documents.
• Encourage unrepresented parties to obtain independent advice and use approved court forms.