Mediation

Frequently Asked Questions

With the increasing complexity of society, a push has been made to create and foster new methods to resolve disputes within families in more responsively.
“ADR” stands for “Alternative Dispute Resolution.” The idea behind ADR is that people are given the chance to consensually resolve or settle their disputes with others with the assistance of a trained facilitator, who is known as a “neutral.” ADR is an umbrella term that describes various different processes to resolve disputes, such as mediation, case evaluation, arbitration (binding or non- binding) or a judicial settlement conference. In Tennessee if you have a lawsuit pending in our Circuit or Chancery Courts, the Judge may order you to participate in one of these processes.
“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. Rule 31 Rules of Tennessee Supreme Court

Most disputes, other than criminal matters, are appropriate for mediation. All issues in family law can be and regularly are resolved through mediation.

Mediation is a flexible process in which the parties are given the opportunity to make informed decisions. Mediated agreements may have an ability to satisfy interests and goals of the parties that a Court’s decision or ruling may not be able to provide. Resolution of a case through mediation often saves time, money, and feelings and if agreement is reached on all issues, enables the parties to avoid a contest in court. See PROs and CONs below.

The process is designed to be completely consensual and provides the forum to often overcome communication problems and other hindrances to resolution of disputes.  Mediation is a completely confidential process and the mediator may only report back to the judge in your case that the matter settled or did not settle without any details.  Mediators do not function in a judicial capacity and are not there to render a ruling on your dispute.  Mediations can take place with lawyers present or without lawyers present depending on the parties’ need for legal advice during the process, as mediators are prohibited from rendering legal advice to the parties.

The mediator is a trained person, often, but not always, a lawyer, who manages the process and makes sure that the mediation remains balanced and on track.   A good mediator has excellent communication skills, is a good listener and is able to keep the process on track. 

A mediator is considered a “neutral” and as such is not permitted to give legal advice or to “represent” either party or both parties to the mediation. Mediators are able to help the parties develop the documents needed to get a divorce or post-divorce agreements memorialized for the court however.   In some cases, matters are simple enough to move forward without legal advice.  Other times, legal advice is essential to making certain decisions and the mediation can be suspended to obtain advice.

Go to http://www.tsc.state.tn.us.  Click on “Programs and Services” and then “ADR/Rule31” for more information.


How Does Mediation Differ From Traditional Judicial Processes In A Divorce?

  • Evidence Presented
  • Judge renders a decision on generally all issues—
        • child’s residence
        • parental responsibilities and decision-making
        • division of property
        • division of debt
        • child and spousal support
        • reimbursement of attorney fees and costs of litigation
  • Appeal to Tennessee Court of Appeals necessary to overturn judge’s decisions.
      • Informal process, evidence/proof not presented
      • Opportunity through private and confidential discussions with “neutral” or “mediator” for parties to “generate options”
      • Parties make the decisions on parenting and financial issues

Advantages And Disadvantages Of Mediation

Image

Pros


  • Greater creativity and flexibility with mediation.
  • Opportunity to deal with matters in time sensitive manner.
  • Creates new model for family for dealing with future conflicts which arise.
  • Takes place in one or more sessions.
  • With or without lawyers present, as the parents and their counsel agree.
  • Is “interest” based rather than positional.
  • Allows parties to have joint control over the result.
  • Not without conflict, but less adversarial than trial.
  • Confidential, no prejudice to the case results.
  • Mediator’s job is to ensure fair and balanced process.

Cons


  • Timing must be right with both parties realizing that they have something to gain by reaching a resolution.
  • In the case of a power imbalance in the family, as in the case of domestic violence, mediator must have special ability to keep the playing field level.  Choice of mediator can be very important.