It ain't over til it's over.

Here's the scenario: a couple agrees to a marital dissolution agreement during Rule 31 mediation. The agreement is dictated to audiotape by the mediator and agreed to, though not signed by, the parties. Then, before court approval, the husband repudiates the agreement. Is the agreement enforceable?

According to a recent Tennessee Supreme Court opinion, the answer is "no." First, the court does not have the authority to enter a consent judgment unless the parties consent at the time the agreement is sanctioned by the court. Second, the marital dissolution agreement is not an enforceable contract because it was not reduced to writing, and "statements" made and "information" obtained during mediation are not admissible.

I would like to have seen more analysis of whether the agreement itself should be considered "statements" under Rule 31 or Tenn. R. Evid. 408, and whether it should be considered "information" obtained during mediation under Rule 31. But once again the Supreme Court has inexplicably declined to consult me before issuing a decision.

Another interesting aspect of this case is its procedural history. The trial court granted a request for interlocutory appeal, but the Court of Appeals denied the application. Then the Supreme Court agreed to hear the case. In effect, then, the trial court's interlocutory decision received direct review from the Supreme Court. I would have thought this a unique situation, but a little research reveals that it has happened several times before.

Practice Tip -- If you want a mediated agreement to stick, put it in writing and get it signed. Also, if your Rule 9 application is denied by the Court of Appeals, don't give up. The Supreme Court may be more accommodating.