Divorce Mediation is a process that uses a professionally trained, neutral family mediator, working closely with the divorcing couple, to arrive at a negotiated settlement covering all terms for the couple’s divorce, out of court.
In Tennessee it is best to use a mediator that is a Rule 31 listed mediator approved by the Tennessee Supreme Court. This assures that the mediator is properly trained and experienced, and fully understands the rules and ethical obligations of a mediator.
The goal of the mediator is help the two spouses find their areas of agreement and clarify their areas of disagreement so that two parties can work effectively to develop their own negotiated divorce settlement.
The mediator may also educate the divorcing couple on applicable Tennessee laws affecting their case, and if the mediator is also an attorney, he/she may describe their experience of how the courts interpret those laws. This helps the couple reach a good and fair negotiated settlement that will be approved by the court.
One or both of the parties may also be represented by an attorney during the mediation process. But regardless of whether they are, it is assumed the two parties in the case have disclosed accurate and complete financial information with each other, prior to the mediation.
The mediator cannot take sides in the case. Therefore, if the mediator also happens to be an attorney, that attorney cannot represent the interests of either party, or previously have had either party as a client.
Mediation can be used at different stages with different “styles” within divorce cases. For example, it can be used at the beginning of a case and at later times in the case. Mediation can be used in non-litigated (i.e., out-of-court) cases and in litigated cases.
In fact, under Tennessee law, before a litigated divorce case can go to trial, divorcing couples must attempt to resolve their differences using mediation.
Two important variations in the use of mediation in Tennessee divorce cases correlate with the stage at which they are used. These are “Early Stage Mediation” and “Late Stage Mediation.” These are not legal distinctions. These are simply two common, but quite different, examples of the possible scenarios under which mediation can be used.
Early Stage Mediation: Lower Pressure
When mediation is used soon after both parties conclude that they are facing divorce, it is typically called Early Stage Mediation. At this stage the case is usually not yet being litigated in court. Therefore, there is greater hope that mediation will be successful, so that the parties can avoid litigation.
Even if one of the parties has already filed for divorce, the Early Stage Mediation process can still be used. It does not matter if the divorce was filed based on “irreconcilable differences” (which makes it an uncontested or “no-fault” divorce), or if it was filed on “fault” grounds.
Early Stage Mediation as characterized tends to be low-pressure because no trial date is set. It is composed of a series of sessions between the divorcing parties and the mediator, spread over a period of several weeks, or a month or two if needed, to arrive at the terms of the settlement agreement. The negotiation sessions, typically 3 to 6 (or more if needed), are scheduled at the convenience of the clients and tend to run only two hours long. There is plenty of thinking time in between sessions to make decisions or consult with an attorney. This style of mediation allows for creative “horse-trading” to find compromises, and opportunities for clients to apologize, if they wish, and make amends as a means to reach settlement.
Typically, in Early Stage Mediation the clients are not represented by attorneys, but there is nothing to preclude that. Rather, the absence of attorneys from Early Stage Mediation is often because these are relatively simple cases, or the divorcing couple needs to contain the costs of their divorce.
The two clients can be in same room, or in different rooms if they please. In the latter case the mediator “shuttles” between the two rooms. If they have attorneys, those attorneys can be with them in the negotiation sessions or absent from them. It is the client’s choice.
When the mediation process is complete, the mediator writes up a Memorandum of Understanding containing a description of the terms of the proposed final settlement for the divorce. An attorney, one who has not acted as the mediator, must formally write up the final settlement agreement and related court documents to be submitted to the court for approval. This is required by Tennessee law.
NOTE: Early Stage Mediation has some of the characteristics of the Collaborative Divorce process. When using Collaborative Divorce, with the financial neutral and coach on the team, there is effectively a form of mediation inherently built-in to the series of meetings organized by the team.
Late Stage Mediation: Higher Pressure
When mediation is used in a litigated divorce, it usually occurs late in the litigation process as the case approaches a trial date. Therefore the attempt to use mediation at this stage is called Late Stage Mediation. The use of mediation at this stage may be due to the court mandate, or it may be due to the concern that one or both attorneys (or their clients) have about the weaknesses of their case. In fact, only about 5% of all divorce cases nationwide end-up in a court room trial.
Regardless of the reasons for using Late Stage Mediation it does effectively reduce the number of cases that go to trial. However, it may not be the most efficient way to resolve divorce cases from a client’s perspective, because by the time to goes to mediation there may have been some waste in preparing for a trial that is likely not to occur (e.g., on depositions, motions, interrogatories, temporary hearings.)
Furthermore, once a trial date has been set for a litigated divorce, most clients’ tempers have flared and their thinking is clouded by anger and resentment towards their spouse and/or their spouse’s attorney. This often reduces the willingness of clients to make the compromises often necessary to reach a settlement.
Furthermore there is little time left for the mediation process to work effectively. It is typical for the entire Late Stage Mediation to be done in just one or two consecutive days, for example on the weekend before the trial. This is insufficient time to think through options, or discover creative ways to resolve conflicts through “horse trading.” And, to compound matters, the mediators who are best at getting results in the “11th hour” use high-pressure negotiation tactics in lengthy marathon mediation sessions. The mediator’s best strategy for moving the clients out of their less tenable positions is to emphasize the weaknesses in each party’s case.
Often the final result of Late Stage Mediation is a negotiated settlement that is essentially the same or similar to one that would have been obtained much earlier had the clients and their attorneys committed to a problem solving settlement process such as Collaborative Divorce.