HOW IT WORKS
Mediation is a process of conflict resolution in which couples work together with the assistance of a trained mediator in a series of sessions to discuss problems and reach agreements that fit their particular circumstances. In a divorce situation the mediator will guide the parties through gathering the necessary information to negotiate an acceptable agreement which distributes the assets of the marriage; provides for the payment of the debts and alimony (when applicable). The mediator also assists parents of minor children in the creation of a Parenting Plan specifically designed for the needs of the whole family. This plan will detail when the children will be with each parent, who will pay support, who will pay for their medical care, who will make the major decisions in their future and other specifics which should make it easier to parent children after the divorce.
Attorneys are not usually present at these sessions but will continue to provide legal advice as needed, and will review agreements with the parties prior to the signing of documents. The mediator, unlike a judge, gives no legal advice and makes no decisions, but can provide legal information and help explore reasonable and safe options to suit the family’s particular circumstances.
The focus is on problem solving in an effort to avoid a court battle. The cost of mediation is far less both financially and emotionally than the costs of a contested divorce where there may be depositions, interrogatories and pretrial motions; and the final decisions are made by the Judge after several hours of testimony in the adversarial environment of a courtroom. The parties share the mediator’s hourly fee. The mediation setting is private and safe and scheduled for the convenience of the parties as much as possible. The parties are in control of the outcome.
Tennessee law now requires mediation in a divorce case prior to setting a case for trial. The Parenting Plan requires that parents go to mediation (or some other process for dispute resolution) prior to returning to Court to resolve post-divorce issues about the children other that child support. However, the parties can agree to take child support issues to mediation and many parents prefer this approach. All the pertinent information is discussed and calculations are made according to existing child support guidelines to revise the chld support when appropriate. The modification of the Parenting Plan can then be submitted to the Court as a agreed order, eliminating unnecessary attorneys' fees for Court appearances and discovery. Mediation is more likely to be successful the earlier it is utilized. The parties may choose to mediate at any time, and not wait until ordered to do so by the Court. Many couples choose mediation prior to retaining attorneys and paying increasingly higher retainer fees. The Court will not order mediation when there is a serious safety issue such as spousal or child abuse. These cases may be mediated with both parties’ consent, but only by a mediator with specific training in domestic violence, (sometimes a team of mediators), in a safe setting.
The issue of domestic violence, which is a crime, is never mediated; however a safe Parenting Plan can be developed where the parents have little or no contact with each other.