Mediation in Tennessee Divorce Cases
Mediation is an out-of-court meeting where spouses and lawyers meet with a mediator to try and settle all issues of the divorce. The mediator is typically an experienced family law attorney who acts as a neutral third party.
Mediation has revolutionized family law. Divorce and child custody cases are settled in mediation with increasing frequency. The latest data shows between 90-95% of family law disputes in Tennessee are settled before trial. Mediation is ordered by Tennessee courts in nearly all family law cases.
Mediation dramatically reduces the costs and time necessary to settle your case. The process is considerably less contentious than a trial. Settling a case in mediation can also help decrease the hostility between spouses. This is particularly beneficial if children are involved. Cases settled through mediation are less likely to be taken back to court after the divorce, and the parties are more likely to be satisfied with the results.
If mediation is successful, the spouses agree on a property settlement and/or parenting plan that meets their unique needs. Both parties control the terms of the settlement in mediation, unlike a court battle in which they lose all control over the final outcome.
In most family law mediations, the parties stay in separate rooms with their lawyers and the mediator goes back and forth negotiating with the lawyers and their clients. The mediator may also meet with the attorneys alone. The mediator is actively involved in reaching a settlement, makes recommendations based on the evaluation of the parties’ positions, and sometimes advises the parties how the court is likely to rule.
Before the mediation, your lawyer should prepare a written mediation statement that sets forth the strengths and weaknesses of your case. You and your lawyer should also discuss what, if any, evidence provided to the mediator should be shared with your spouse and his or her attorney. You do not always want to educate the other side about the strengths or weaknesses of your case if the mediation is unsuccessful.
All communications, records, documents and reports produced during mediation are confidential and privileged. This means the parties, the attorneys and the mediator cannot disclose the evidence used in mediation except under narrow circumstances. This encourages the parties to fully disclose any sensitive information to the mediator in an effort to help settle the case.
You must approach mediation with an open mind and a willingness to compromise. Good faith on the part of both sides is essential to a successful mediation. Every case has the potential for settlement, so do not assume your case will not settle. Experienced family law attorneys are often pleasantly surprised when cases they thought had a low probability of settlement end up settling at mediation.
When children are involved, parents must always honor their children by placing their best interests first. Love your children more than you dislike your spouse, and put what is important for them ahead of any personal animosity.
Avoid fights over insignificant issues. Do you really want something, or are you just try and keep your spouse from getting it? Remember to pick your battles wisely. Ask yourself if whatever you are fighting over is really worth going to court.
You will need to decide what your “walking away” point is. This occurs when you decide you would rather go to court then take your spouse’s last offer. Your “walking away” point is sometimes revised as the negotiation progresses.
Do not expect to leave mediation with everything you wanted or in a good mood. Settlement requires compromise by both sides. Keep in mind that a successful mediation is almost always a lot less costly — in time, money and heartache — than a battle in open court.
If you are fortunate enough to settle some or all of your issues, the lawyers must draft a written settlement agreement that will be signed by all the parties and attorneys. Most courts will enforce a signed written settlement agreement even if a party tries to back out of the deal after the agreement is signed.
If you want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.