Mediation is an important tool that can lower the stress and cost of divorce. Here's what you need to know about how divorce mediation works in Tennessee.
In divorce mediation, a trained, neutral professional works with both spouses to help them find solutions to their disputes and guide them through the negotiating process. You can try mediation at any stage in the process of ending your marriage, including after your divorce is final.
If you and your spouse can reach a divorce settlement agreement (known in Tennessee as a "marital dissolution agreement") before you actually file your divorce papers, you'll be able to get an uncontested divorce. That way, the entire divorce process will be simpler and quicker.
The settlement agreement will cover all of the important issues involved in ending your marriage, including:
A mediator (sometimes referred to as a "neutral" in Tennessee) can help if you're having trouble agreeing with your spouse about any or all of these issues. If you're able to resolve everything, most mediators will prepare the written agreement reflecting the settlement terms.
If you or your spouse resisted mediation before your divorce started, that might change once your case proceeds in the legal system. For instance, some people become more willing to mediate after certain information has come to light during the "discovery" process—which provides legal tools for getting evidence from the other spouse (such as hidden assets) or from experts like child custody evaluators.
But whatever your feelings about mediation, you really don't have a choice after you've filed for divorce in Tennessee, because the state's laws require mediation in divorce cases (more on this below). (Tenn. Code § 36-4-131 (a) (2022).)
You and your spouse may choose a mediator. But if you can't agree, court staff will assign one for you. The Tennessee courts provide a list of mediators who meet the state's qualification requirements.
Even after your divorce is final, you could run into disagreements with your ex about the provisions in the divorce judgment—especially if you're still co-parenting or one of you is paying support to the other. For instance, you or your spouse might want to move with the children, adjust the parenting schedule, or change the amount of child support or alimony. If you can't agree with each other on a modification, mediation can help you avoid an expensive legal battle over the issue.
Here again, Tennessee law steps in to force you to try mediation before heading to court—at least when it comes to issues related to your children. In any divorces involving minor children, parents must submit a "parenting plan" to the court. These plans address topics such as providing for children's changing needs as they grow and mature. So parenting plans stretch beyond the divorce. Under Tennessee's divorce laws, all these plans must include a procedure for mediating any disputes over the plan before the parents get the courts involved. (Tenn. Code § 36-6-404(a)(4) (2022).)
As we've discussed above, mediation is generally mandatory once a divorce is already in the Tennessee court system. But the requirement won't apply if the judge finds a good reason for bypassing mediation, such as when:
Even though mediation isn't normally required in uncontested divorces, if the judge doesn't approve your dissolution agreement or parenting plan, you'll then have to attend mediation. (Tenn. Code §§ 36-4-131, 36-4-103(g) (2022).).
In cases where there's been domestic violence, Tennessee judges may order mediation only when all of the following are true:
(Tenn. Code § 36-4-131(d) (2022).)
The cost of divorce mediation can depend on a number of different factors in your situation, such as:
The cost might also depend on the mediator's special training and qualifications. Many mediators are lawyers, but that's not a requirement.
The cost of court-ordered mediation may vary from one court locale to another. But according to the Tennessee Courts mediation webpage, the average fee is $50 per hour. The cost is usually split equally between the spouses.
If you can't afford the mediation fees, you can request that the court waive them. In order to qualify for free ("pro bono") mediation, you'll have to provide information on your income and assets. You can contact the local court clerk to find out what's involved. If you don't meet the requirements for free mediation but still can't afford the full fee, you can ask the judge to reduce the fee. Additionally, some mediators may charge on a sliding scale, based on a couple's combined income.
The Tennessee legislature has established a Parent Education & Mediation Fund to provide financial assistance for parents in need of mediation services involving child-related issues. Eligibility is determined by a sliding scale based on a spouse's income. (Tenn. Code Ann. § 36-6-413; Tenn. Sup. Ct. Rules, rule 31, § 8 (2022).)
As we've discussed, couples often use private mediation before they've filed for divorce, so that they can avoid the pitfalls and extra costs involved in the contested divorce process.
Hourly rates for private mediation typically range from $100 to $300, often depending on the type of mediator you choose. For example, a psychologist or social worker may charge less than a lawyer. The mediator you choose should have expertise in the areas of most concern to you. Most divorce lawyers are familiar with all the issues that usually arise in a divorce. But if your disagreement is limited to finances (like retirement accounts or a business), you might want to go with a mediator who has specialized financial expertise. Likewise, if the only area of contention relates to custody and visitation, your best bet might be a psychologist or social worker.
The law requires mediators to tell you their fees and billing methods (such as a flat fee or hourly billing) in advance. The total bill will depend on how many hours or sessions you'll need to resolve all of the issues in your divorce.
If private mediation seems a bit pricey, remember that most couples split the bill. Divorce can cost even more when you and your spouse each hire your own lawyers—especially if you have go to trial to resolve your disputes. Also, you have more control over the outcome of your divorce with mediation than when a judge makes the decisions for you.
There are community mediation centers in Tennessee that provide services regardless of someone's ability to pay, but they give priority to those who can't afford to pay market rates.
Successful divorce mediation requires a level playing field between you and your spouse, to the degree possible. Both of you should feel free to say what you want and express your opinions without worrying about being pressured, bullied, or even abused as a result. That's why mediation is almost never appropriate if you're experiencing domestic violence or abuse.
There are also other situations that could get in the way of effective mediation, including:
If you choose to participate in mediation despite a history of verbal or physical abuse from your spouse, you can ask for protective measures like meeting with the mediator separately from your spouse. Even with online mediation, separate meetings can make it easier for you to speak freely and help you feel safer.
To make the most of your time with a mediator, you should do some advance preparation. Gather any information and documents related to the disputes in your divorce, such as financial records and a list of marital and separate property (with values and amounts). Some mediators will ask for this information as part of the initial intake process. It's also a good idea to think about your goals from the mediation process.
The actual mediation usually follows the same general steps or stages:
The mediator won't give you legal advice or pressure you into any agreement. Instead, mediators are trained to guide you through the process of clarifying the issues, coming up with possible solutions, and working out compromises.
While it's common for mediation sessions to be conducted in the mediator's office, online mediation is becoming increasingly popular.
After speaking with the couple together, mediators will often have the spouses stay in separate rooms (or virtual rooms in remote mediation)—even if there hasn't been a history of domestic violence. Commonly known as "shuffle" mediation, this practice gives each spouse the chance to frankly discuss their positions with the mediator, without having to worry about a reaction from the other spouse.
If either or both spouses have attorneys representing them, the attorneys are ordinarily permitted to attend the mediation. But be forewarned that an attorney who's very confrontational can do more harm than good. Attorneys are supposed to be there to give you legal advice, not to conduct themselves as if they're in a trial.
Mediation in Tennessee is confidential. Mediators aren't allowed to divulge information disclosed to them by the spouses or anyone else in the course of mediation. (Tenn. Code § 36-4-130 (2022).)
Communications made during mediation may be disclosed under the following circumstances:
(Tenn. Code § 36-4-130 (2022).)
At the conclusion of mediation, the mediator will generally prepare or help you prepare a written document that reflects any agreements you and your spouse made during the process. Sometimes this may end up being the formal marital dissolution agreement, depending on how it's drawn up. At the very least, it will provide the basis for the final written agreement.
Ideally, each spouse should have their own attorney review the agreement to make sure they haven't missed anything or given up any of their legal rights. And if your agreement includes splitting 401(k) accounts or pensions, you'll almost certainly need an expert to prepare the special order (known as a "qualified domestic relations order," or QDRO) you'll need to give to the plan administrator.
If you reached a complete settlement agreement in mediation before starting the official divorce process, you'll then need to prepare and file your divorce papers in the Tennessee courts. (Or you can file for divorce online and get help with the filing process.)
When you have a settlement agreement, it's possible that only the spouse who filed for divorce will have to appear in court for the final hearing. But that varies from county to county, so you should contact the court clerk to to find out the local rules. At the hearing, the judge will review your paperwork and agreement to make sure everything is in order. As a practical matter, it's probably a good idea for both spouses to appear, just in case the judge has any questions about the settlement.
In Tennessee, the court won't give you a final hearing date until a certain period of time after you've filed the initial divorce papers. The waiting period is 60 days if you don't have an unmarried child younger than 18. Otherwise, it's 90 days. (Tenn. Code § 36-4-101 (b) (2022).)
You never have to agree to anything in mediation, even when a judge has ordered you to participate in the process. If you don't reach an agreement that covers all of the issues in your divorce, you'll need to have a divorce trial to have a judge decide any remaining unresolved issues in your case.
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