How Does the Process of Mediation Work in a Divorce in Tennessee?
It’s common for people experiencing the court process for the first time through divorce to have questions about mediation. Mediation, is a for of ‘alternative dispute resolution,’ which refers to the process by which a specially-trained, neutral third-party mediator meets with a divorcing couple with the goal of assisting them to point of resolving their disputes ahead of or in leu of going through a court trial. The process is governed by Tennessee Supreme Court Rule 31. Because the mediator is a separate and neutral professional advocating for neither parties in the divorce proceedings, he or she does not offer any legal advice. The mediator’s sole job is to aid in bringing the divorcing parties together in agreement, helping them to resolve some or all of their contested divorce issues. The mediator never forces the parties into agreement, but will work with both the divorcing spouses to help them arrive at their own solutions on divorce related issues including (among other areas of dispute) division of property, debts and alimony as well as child support, custody, visitation and parenting plans. Mediation is confidential meaning the mediator cannot be called as a witness at trial if a divorcing couple is unable to settle. That means any discussions that occur in the course of settlement negotiations during mediation cannot be disclosed at trial.Is Divorce Mediation Mandatory in Tennessee?
In almost every contested divorce in Tennessee, since The Tennessee legislature enacted T.C.A. 36-4-131(a) where each party of a divorce must attempt to settle their disputes through this process, mediation will be required by a judge prior to setting a trial date. However, there are certain waivers of mediation as found in the Tennessee code T.C.A. 36-4-131(b) including the following:
- If either party cannot financially afford the cost and expense of hiring a mediator (but the requirement still applies if the mediator’s fee is waived or subsidized by the state or other agency)
- If the parties have filed a Marital Dissolution Agreement, Agreed Order or Final Judgment addressing all issues
- If a settlement conference has been held with the court or special master
- If the court believes impasse will result from mediation
Typically, the mediator will place the parties in separate rooms with the attorneys of the divorcing spouses present. Attorneys can provide their clients with legal advice while he or she is in mediation, including the consequences of any agreement reached. The mediator can choose to place the parties in the same room, but many times in divorce cases emotions are high therefore it may be deemed best practice to have the parties separated. When the parties are separated, the mediator will move between each room, working toward resolution. When negotiations are successful and an agreement is reached, the parties will enter into a binding, written agreement while at mediation. The parties’s attorneys can draft all necessary documents while at mediation, including the Marital Dissolution Agreement, Parenting Plan and Child Support Worksheet.Do We Have to Have a Lawyer in Order to Attend Mediation? Can't the Mediator Just Draft the Documents During Mediation?
You do not have to have a lawyer. However, on April 25, 2017, the Tennessee Alternative Dispute Resolution (ADR) Commission addressed the question of whether the mediator can draft the documents and issued an opinion. Now a Rule 31 Listed Mediator may only assist the parties in memorializing the terms of the agreement by preparing a Memorandum of Understanding (“MOU”). However, a Rule 31 Listed Mediator can not prepare a Marital Dissolution Agreement or other legal document for presentation to the court . If the parties have attorneys, then the attorneys can prepare the paperwork necessary for filing with the court. If the parties do not have attorneys, the parties themselves can prepare the paperwork necessary for filing with the court. The parties can take the MOU to a lawyer and have the lawyer draft a Marital Dissolution Agreement that uses the MOU and includes additional language prepared by the attorney. If you have children then a Parenting Plan must also be drafted. However, if the parties do not have attorneys and/or they choose to fill out the parenting plan themselves and submit it to the court for approval, the Mediator may only discuss with the parties which categories their MOU agreements pertain to within the body of the Parenting Plan but then the parties themselves must reduce that Parenting Plan to a formal Order and that Order must be submitted to the court for approval. A Rule 31 Mediator can not prepare legal documents, such as a Parenting Plan, that can be filed with the court. With these changes it might be beneficial for people to have lawyers who will attend mediation with you, so that way all of the necessary paperwork can be drafted and signed before you or your spouse leave mediation and potentially change his or her mind. If they change their mind before anything is signed then there is no agreement and you will be, most likely, now heading for a trial before a judge.
If you have questions about the divorce process and mediation as it relates to your case, it’s important you seek the services of a competent family law legal professional. Widrig Law PLLC is an experienced local Nashville law firm that handles contested divorce cases, uncontested divorce cases, and many other family law matters. Contact Widrig Law to schedule a consultation.