If it appears as though your marriage is headed for divorce, you are probably going through a period of stress and heightened emotions. In addition, you may be a bit apprehensive of the legal process you must go through to legally end your marriage. After all, the legal system can be intimidating under the best of circumstances. Going through a divorce, is not the best of circumstances for most people. Knowing what to expect, and learning more about the divorce process itself, often helps when going through a divorce. For example, you will likely be required to go through mediation as part of the divorce process. Since this is also something with which you are likely unfamiliar, a Tennessee divorce attorney explains what to expect during mediation and how mediation can be beneficial.
What Is Mediation?
Mediation is a form of Alternative Dispute Resolution, or ADR. ADR methods have become very popular throughout the United States as a way to resolve civil litigation, or as a way to prevent litigation. Mediation is a type of ADR that is frequently used in divorce, and other family law, cases. Both sides agree on a mediator, or one is chosen by the court. Most states, including Tennessee, have a fairly elaborate training and certification process for mediators. Often times a mediator is a lawyer who has undergone specialized training in mediation; however, not all mediators are attorneys. A certified mediator, however, does have specialized training and has been approved by the relevant state court system. The job of a mediator is to try and help the parties reach a mutually agreeable resolution to the conflict, in this case to the issues in the divorce. The mediator does not evaluate the legal strengths or weaknesses of the sides nor does the mediator offer legal advice to either side. Instead, the mediator tries to focus on areas of agreement or compromise that might allow the parties to reach an agreement.
Is Mediation Required?
In the State of Tennessee, Supreme Court of Tennessee Rule 31 requires the parties to a divorce to submit to mediation unless one of the exceptions to the mediation requirement applies. Exceptions include:
- A finding that a party cannot afford mediation (although the state may subsidize or the cost may be waived)
- A default judgment is entered against the defendant
- The court finds that a limiting factor under § 36-6-406 applies – this generally refers to one of the following situations:
- Willful abandonment or substantial refusal to perform parenting responsibilities and neglect; or
- Physical abuse, sexual abuse, or emotional abuse toward the other parent, toward the child, or toward another person residing with the child.
What Happens during Mediation?
Mediation takes place outside of the courtroom, typically at the mediator’s office or another neutral location. Both the plaintiff’s and respondent’s attorney will have already forwarded relevant information to the mediator regarding the contested issues in the divorce. On the day of the mediation, the mediator will usually speak to both parties privately about their goals, priorities, and areas where they might be willing to compromise. The mediator then goes back and forth between the parties trying to facilitate an agreement. The mediator does not force either side to agree. Instead, he/she offers suggestions on ways to resolve contested issues. The mediator remains a neutral party throughout and does not favor one side or the other during the mediation process. Moreover, the parties are not required to agree to anything during mediation.
What If We Cannot Reach an Agreement during Mediation?
If the mediation is successful, the agreement reached is reduced to writing and submitted to the court for approval. Sometimes, mediation only resolves some, but not all, contested issues. In that case, the issues resolved are contained in an agreement and submitted to the court; however, the divorce remains open because other issues were not resolved. If any contested issues remain unresolved after the mediation, the case will resume on track for trial.
How Is Mediation Beneficial?
Mediation can be a much quicker, and less expensive, method of resolving the contested issues in a divorce. A court trial will typically cost both parties a significant amount in legal fees and it can take many months, even years, to get a trial date for a contested divorce because of the overcrowded civil dockets.
Contact a Tennessee Divorce Attorney
If you are facing the prospect of a divorce in the State of Tennessee, it is in your best interest to consult with an experienced divorce attorney as soon as possible to ensure that your rights are protected. Contact the team today by calling 615-898-1560 to schedule your appointment.