I've heard about mediation, but I've also
heard that the less sophisticated spouse is more likely to be
taken advantage of.
True, there may be an imbalance of power. Your lawyer can help
advise you through the mediation process. Also, an ethical and
experienced mediator will take this into account and even reject
cases if there is a likelihood of fraud or unfair dealing.
I might consider mediation, but will I have to waive
my ability to use a lawyer?
Absolutely not! Ethical mediators encourage clients to have
independent counsel review divorce agreements.
But if lawyers get involved, why bother with
mediation?
Your lawyer might play only a limited role, depending on the
situation and complexity of the issues. Your lawyer should advise
you to make sure the agreement is fair and reasonable. Although
some do, mediators are not supposed to offer any advice as to
whether the terms of any agreement are fair or reasonable, or
comment on what a particular judge might order in the event of a
trial.
Well, this all sounds reasonable, but my spouse would
never agree to mediation. Can I force him?
In Tennessee, yes and no. Some judges are ordering persons to
mediate cases over the objection of one of the parties. However,
the mediation process is 100% voluntary. This is understandably
confusing. If you are ordered to mediate, it does not mean you
are ordered to reach an agreement. But the judge will expect you
to make an effort and enter the mediation process in good
faith.
What is mediation anyway?
Mediation is a form of "Alternative Dispute Resolution."
Alternative Dispute Resolution is a relatively new procedure used
by the courts to resolve disputes without trials. The theory is
that many cases that result in trial can be resolved if there is
a formal process by which the parties meet to discuss the issues
in the case. The process is controlled by Tennessee Supreme Court
Rule 31. Below are a few selected provisions from Rule 31:
Section 1. Application
Pursuant to the provisions of this Rule, a court may order the
parties to an eligible civil action to participate in an
alternative dispute resolution proceeding in accordance with this
Rule.
Section 2. Definitions
(c) "Mediation" is an informal process in which a
neutral person, called a mediator, 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.
(e) "Non-binding arbitration" is a process in which a neutral person or a panel, called an arbitrator or an arbitration panel, considers the facts and arguments presented by the parties and renders a decision which is non-binding.
(f) "Case evaluation" is a process in which a neutral person or a panel, called an evaluator or evaluation panel, after receiving brief presentations by the parties summarizing their positions, identifies the central issues in dispute as well as areas of agreement, provides the parties with an assessment of the relative strengths and weaknesses of their case, and may offer a valuation of the case.
Section 3. Initiation
Upon motion of either party, or upon its own motion, a court,
by order of reference, may order the parties to an eligible civil
action to participate in a judicial settlement conference,
mediation, or case evaluation.
Section 4. Evidence
Evidence of conduct or statements made in the course of
court-ordered alternative dispute resolution proceedings shall be
inadmissible in court to the same extent as conduct or statements
are inadmissible under Tennessee Rules of Evidence 408.
Section 6. Confidentiality
A Rule 31 dispute resolution neutral or settlement judge shall
preserve and maintain the confidentiality of all alternative
dispute resolution proceedings except where required by law to
disclose the information.
Section 9. Participation of Attorneys
Attorneys may appear with clients during alternative dispute
resolution proceedings.
APPENDIX A. STANDARDS OF PROFESSIONAL CONDUCT FOR RULE 31 MEDIATORS
(4) The Mediation Process.
(a) Orientation Session. On commencement of the mediation session, a mediator shall inform all parties that the process is consensual in nature, that the mediator is an impartial facilitator, and that the mediator may not impose or force any settlement on the parties.
(b) Continuation of Mediation. A mediator shall not unnecessarily or inappropriately prolong a mediation session if it becomes apparent that the case is unsuitable for mediation or if one or more of the parties is unwilling or unable to participate in the mediation process in a meaningful manner.
(5) Self-Determination.
(a) Parties' Right to Decide. A mediator shall assist the parties in reaching an informed and voluntary settlement. Decisions are to be made voluntarily by the parties themselves.
(b) Prohibition of Mediator Coercion. A mediator shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party to a mediation process.
(c) Prohibition of Misrepresentation. A mediator shall not intentionally nor knowingly misrepresent material facts or circumstances in the course of conducting a mediation.
(d) A Balanced Process. A mediator shall promote a balanced process and shall encourage the parties to conduct the mediation deliberations in a nonadversarial manner.
(e) Mutual Respect. A mediator shall promote mutual respect among the parties throughout the mediation process.
(8) Professional Advice.
(a) Generally. A mediator shall not provide information the mediator is not qualified by training or experience to provide.
(b) Independent Legal Advice. When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.
(d) Personal Opinion. While a mediator may point out possible outcomes of the case, a mediator should not offer a firm opinion as to how the court in which the case has been filed will resolve the dispute.
