Divorcing couples in Tennessee will likely be required to attend mediation at some point in the divorce process. Divorce mediation, which is also called “alternative dispute resolution,” refers to the process by which a specially-trained, neutral third-party mediator meets with a divorcing couple to help them resolve their disputes without having to go through a court trial. The process is controlled by Tennessee Supreme Court Rule 31.
The mediator’s job is to try and help couples resolve some or all of their contested divorce issues. The mediator won’t force the parties into an agreement, but will work with both spouses to help them arrive at their own solutions on divorce-related issues, including the division of property and debts, and alimony. With child custody disputes, parents are required to attend mediation to work out a parenting plan that resolves custody and visitation.
Couples that can reach agreements in mediation often find the process to be much less stressful than couples who have had their divorce issues decided through long, drawn-out court proceedings. Mediation is also far less expensive than a full-blown trial, which involves attorneys’ fees and experts, such as appraisers and mental health professionals.
Thus, divorcing couples are encouraged to give mediation a try before heading into court.
It’s true that in mediation there may sometimes be an imbalance of power, which makes the process inappropriate for some couples. In order to combat this, if you consider yourself to be the “less sophisticated spouse,” you should hire a lawyer who can help advise you through the mediation process.
Also, an ethical and experienced mediator will take any power imbalance into account and will reject cases where there is a likelihood of fraud, unfair dealing or even coercion or threats (such as in cases where there is a history of domestic abuse).
No. Spouses going through divorce mediation are actually encouraged to hire independent counsel to provide advice about their rights and responsibilities, to answer complex legal questions, and to review and/or draft divorce settlement agreements.
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. 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. So, hiring a lawyer that can answer those questions is a good idea.
In Tennessee, sort of. Some judges will order couples to mediate cases over the objection of one of the spouses. However, the mediation process is 100% voluntary. This is understandably confusing. If you are ordered to mediate, it doesn't mean you are ordered to reach an agreement; you do not have to agree to your spouse's terms. But, the judge will expect you to make a good faith effort during the process.
If you have questions about mediation, you may want to contact a few experienced family law attorneys in your area to see who can act as your consulting attorney and help guide you through the mediation process.
Click here for a copy of Tennessee Supreme Court Rule 31, which governs the mediation process