What is Mediation?
Mediation is a process in which parties try to settle their domestic case with the help of a neutral third party without going to court. It is required in every divorce or custody case in Tennessee. However, there are different approaches to the mediation process depending on the mediator you hire.
We’ve compared some of the most common types of mediators and mediation styles you might encounter.
There are different types of mediation.
- Shuttle Mediation: Each party is in a separate room, and the mediator shuttles between them to broker a settlement. This is the most common type of mediation (and the kind of mediation you can expect at Held Law Firm).
- Caucus Mediation: Both parties, their attorneys, and the mediator are in the same room, and the mediator attempts to guide the parties toward a solution.
- Transformative Mediation: The mediator tries to find the source of the problem on a psychological and interpersonal level.
There are different types of mediators.
- Evaluative mediators help each party to evaluate the strengths and weaknesses of their cases. Evaluative mediators rely on their experiences and training to find creative solutions to the conflict.
- Facilitative mediators view their role as facilitating communication between the parties. Facilitative mediators try not to inject themselves into the conflict resolution process.
What to expect at Mediation
If you are contemplating divorce or have a pending divorce, you have probably heard the term mediation. In Tennessee, mediation is required in most instances for divorce cases prior to having a hearing by a judge. There are exceptions such as if domestic violence is involved. There are different types of mediation but the most common is shuttle mediation. Shuttle mediation is where the mediator “shuttles” back and forth between a room where you are with your attorney, and another room with your spouse and the opposing counsel.
The mediator is not a judge and does not have any authority to make decisions regarding your case. In Tennessee, most mediators have been trained and apply for listing as a Tennessee Supreme Court Rule 31 listed mediator. Mediation is informal and does not follow rules of evidence or procedure and is a confidential process. Mediation is not any type of trial where you put on evidence and the mediator makes decisions. Discussions or negotiations during mediation are not admissible in court.
Ideally, you and your attorney have prepared for mediation by discussing what your goals are in resolving your case and gathering the necessary documentation to support your positions on certain issues. Keep in mind that even if not all issues are resolved, mediation is an excellent opportunity to narrow the issues and determine what are the underlying concerns that can help you prepare your case if trial is necessary. Mediation can also be a discovery tool to determine additional information.
If resolution is reached, the attorneys can work with the mediator to prepare the settlement documents that can be signed and executed at mediation. Although most clients feel pressure at mediation, it is a voluntary process and a beneficial process to move the case forward one way or another. Either resolutions are reached or issues that need to be litigated are determined. Try to approach mediation with an open mind and a willingness to consider alternate solutions to problems.
Mediation at Held Law Firm
If you are seeking to schedule a mediation, please consider Held Law Firm. At Held Law Firm, we have two buildings and multiple spaces to provide a comfortable environment to explore solutions to your divorce. Melanie Hogg is Rule 31 Listed Family Mediator and an experienced family law attorney and will be happy to conduct your mediation at Held Law Firm.
Melanie, who is also trained in Collaborative Law, has been a licensed attorney for over thirty years and has practiced in five states. She is trained to assist parties reach a resolution through mediation. As a mediator, she helps the parties by discussing the issues with each party and aiding them in communicating to find possible resolutions. The mediator is not an arbitrator and cannot make decisions for the parties. The parties must agree to the terms to reach an agreement. Mediation is often the step necessary for the parties to reach an agreement.
Why is Mediation a Good Thing?
Tennessee Law requires that parties to a divorce or custody proceeding participate in mediation, unless certain limited exceptions apply such as a history of domestic violence or if the parties are already in total agreement. Many of our clients come to us with questions about this process and want to know if it works and whether it is even necessary.
Especially for people who have a very contentious relationship with their spouse, the process can seem like an unnecessary waste of time and money, because agreement between the spouses seems so dubious. However, in our firm’s experience, mediation can be a very useful tool, even in contentious cases. So, what can mediation do for you?
A couple of things…
- Mediation Opens a Dialogue Between the Spouses
If your relationship with your spouse is especially contentious, you may have trouble discussing even comparatively trivial matters with them. Perhaps your spouse just wants to turn every discussion into an emotional fight, or they may even be refusing to talk to you altogether. This kind of relationship dynamic is common for divorcing couples, but it isn’t generally the dynamic you want in your post-divorce life—especially if you have children you need to coparent.
Mediation sets forth a framework for what discussions between divorcing spouses can look like. Each spouse will come to the mediation with a well thought out position on the major issues involved with the divorce or custody dispute, and the mediator will “shuttle” back and forth between them, helping to boil down the most important issues and find a middle ground and an agreement the parties can use going forward. In our own experience, we have seen even highly contentious, complicated cases go to mediation and come out with full agreements.
- Mediation Helps Both Parties Organize
Before you go to mediation, either you or your attorney will need to have prepared a variety of documents. At Held Law Firm, we prepare a spreadsheet of the marital and separate assets and debts with documentation, a proposed Marital Dissolution Agreement that divides everything, a budget, and a proposed Parenting Plan. We have found that having these documents prepared in advance saves our clients hours of time at mediation, which translates to thousands of dollars in legal and mediation fees. It also greatly increases the chances of settlement by laying out what we are, and are not, arguing about. Even if mediation fails, we find that having these documents prepared weeks before going to a final trial encourages both parties to get organized, and to have a clear picture of how they think the divorce should go.
- Mediation Isolates the Contentious Issues
Even if there are some issues that mediation can’t resolve in a particular case, it can still be extremely beneficial to get a written agreement between the parties that resolves the issues they DO agree on. For example, the parties may disagree on alimony but be in perfect sync when it comes to matters involving the children. By going to mediation, such a couple could get a stable, workable agreement in place for the parenting plan without having to wait until the alimony issue is resolved, which could be months later and largely dependent upon the court’s schedule.
In sum, mediation can be an extremely useful tool for almost every divorce or child custody case. In the best case scenario, the parties can come to an agreement and be done, avoiding a trial altogether and maintaining control over their own affairs. And even in the worst case scenario, the parties will have a clearer, more organized picture of what they want to argue at trial and a framework for hashing out smaller issues in the interim.
How to Have a Successful Mediation
One of the benefits of mediation is that it is less stressful than going to court. However, hiring the wrong mediator or coming to mediation unprepared can make the mediation experience seem inefficient and uncomfortable. How can you make sure you have a pleasant mediation experience? We’ve got some tips.
Look for a mediator with:
Knowledge. Unless a mediator is up to date on the law, the latest legal trends, and is familiar with the styles of local judges, they cannot offer you a realistic assessment of your position.
Availability. The best mediator in the world cannot help anyone if they have no time available to mediate.
Support staff. A mediator without support staff to check values of assets, print documents, and draft documents will wind up wasting a lot of time and money while they complete these tasks on their own.
Judicial experience. Sitting behind the bench is worlds different from arguing a case before a judge. A mediator needs to know how judges think and evaluate cases. Mediators with experience in litigation have this practical knowledge and can apply it to your mediation.
A pleasant environment. A mediator needs to be aware that the environment sets the mood for the mediation. Every part of the mediation experience should be designed to relieve stress on the participants. Parking should be abundant and easy to find. The office should be clean and comfortable. There should be enough room between the places where the participants are, so they will not see or hear each other. The mediation experience in an environment like this is significantly better than the experience in a cramped and cluttered office space.
How can I make my mediation go better?
Be prepared. Bring documents that support your positions and show values of disputed assets or debts (for example: bring your most recent pay stubs and a print-out of the debts you owe). Send your mediator a letter beforehand outlining the issues and your goals.
Be open minded. If you bring a “my way or the highway” attitude, you won’t get very far in mediation.
Be calm. No one can make you settle in mediation, and nothing can happen to you without your agreement. Take a deep breath, and ask your mediator for a cup of hot tea or coffee to relax any nerves.
Be creative. Sometimes, when the choice is between option A and option B, the best choice is option C. Don’t hesitate to think outside of the box.
We hope these words of wisdom help you as you prepare for mediation.
