The Burdette Law Firm
Divorce mediation in Tennessee
Divorcing couples in Tennessee will likely be required to attend mediation at some point in the divorce process. Divorce mediation, which is also called “alternative dispute resolution,” refers to the process by which a specially-trained, neutral third-party mediator meets with a divorcing couple to help them resolve their disputes without having to go through a court trial. The process is controlled by Tennessee Supreme Court Rule 31.
In mediation of a divorce, the following four issues will need to be resolved.
1) Development of a Parenting Plan, determining the time spent with children.
2) Distribution of Property, e.g., house, furniture, bank and retirement accounts.
3) Child Support.
4) Spousal Support.
In mediation the focus is on the future. A neutral, third party mediator will help you and your spouse come to an agreement on the above issues. At time agreements come easily, other times they are slow, requiring careful attention. It is the mediator's job to keep the lines of communication open, help in the brainstorming and practicality of ideas, and help the couple to make their own decisions. The mediator is there to help focus on the issues at hand and keep things on track. All negotiations are flexible and confidential.
When children are involved, it is especially important to reduce the conflict in divorces. You will be encouraged to choose the path which you believe will help you settle the conflict most amicably and efficiently as parents, that will help maintain respect in your future relationship as co-parents. The goal at the end of the mediation is that, post-divorce, you can work together effectively to nurture your children.
Here are some frequently asked questions:
Q. Should I file a divorce complaint before I go to mediation?
A. A divorce mediator is neutral and doesn't "work" for either parent. Though a mediator can provide the parties with basic legal information, the mediator cannot give legal advice to either party. What the mediator can do, though, is assist you in formulating ideas that can eventually lead to agreements that will stand the test of time. Because you both are working with the same base of information, it is easier to negotiate a resolution that makes sense to both of you. Mediation is voluntary. It continues only for so long as all three of you - you, your spouse, and the mediator -- wish it to continue. Mediations can be conducted weekly, every two weeks, monthly or as slow or as fast as you wish. This is your mediation and you decide everything in the process. If you wish to take a break from mediation and return to rebuilding your marriage, you are free to do so. There is a difference between this process and a traditional divorce process. In the traditional divorce process, both spouses have already chosen an attorney. Their attorneys file complaints and counter-complaints, often alleging grounds for divorce, including inappropriate marital conduct or cruel and inhuman treatment. The filing alone of such a divorce complaint adds to the animosity between the parties. Before you choose an attorney, you may wish to consult a mediator. This may give you the opportunity to choose a more respectful and civilized process than one that uses two opposing attorneys.
If you believe that you and your spouse are get along relatively well and would like to keep the divorce as amiable as possible, it is important to give the right signals to your spouse. You might choose to meet with a mediator prior to choosing attorneys. If you choose mediation after consulting attorneys, it is important that you clarify with your attorney you value reaching a solution as constructively and peacefully as possible. This is your divorce. The question of when and whether to file a complaint then becomes only a matter of timing. With children, the minimum waiting period is 90 days after filing. Without children, the waiting period is a minimum of 60 days.
Q. How can I prepare for mediation?
A. Parents will have to take a parenting class either before, during or after mediation. This is a four hour class that costs about $40. Parents will learn about child development, communication with the other spouse and the best way to exchange their children. Even good parents will find some interesting information at the seminar. This is a requirement for mediation either during the divorce process or at the end.
Q. How long does divorce mediation take and what are the costs?
A. The length of mediation depends on what issues have been agreed upon prior to mediation and those issues that need to be addressed during mediation. Also, the amount of time spent in mediation is contingent upon you and your spouse's willingness to come to agreements that are equitable for the both of you and your children. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. However, if you and your spouse are not able to discuss your divorce outside of mediation, it is strongly recommended that you avoid the discussion without the help of the mediator. When couples try to work out issues on their own and it leads to arguments and "drawing lines in the sand", it makes mediation more difficult and time consuming.
On average, pre-decree divorce mediation can be completed in 3 - 6 sessions. Each session is usually two hours long. It depends on what, if any, communication there is between the parties and their level of animosity for each other. If either of you are unwilling to budge from your position on a divorce issue, mediation may not be an option for you and you may have to litigate in court. Once this happens, communications shut down and the fight begins. The average mediated case costs $1500 to $3000 for the mediator and $750 to $1500 for at least one attorney to finalize the divorce. It is usually finalized within three to five months. In turn, the average litigated case in the courts costs $15,000 and takes 18 months to come to a conclusion. Keep in mind, the litigated cases cause more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both.
Q. How satisfied are divorcing couples after mediation?
A. Not many people walk away from a litigated divorce feeling satisfied. In contrast, couples who went through mediation generally feel satisfied with the agreements they reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life?
Q. Are the negotiations in mediation private?
A. A final consideration is that divorce in the court system is public. Anyone can sit in court and hear the specifics of your divorce. On the other hand, mediation is confidential, private and conducted behind closed doors. There is also confidentiality between the mediator and each participant, if they meet in solo sessions.
Q. How is a mediation agreement finalized in court?
A. Once the parties have reached agreement for a Memorandum of Understanding and Parenting Plan, one or the other party should contact an attorney if attorneys are not involved in the mediation. The Attorney will prepare a Complaint (if one has not already been filed with the court), a Marital Dissolution Agreement and a Final Agreement. The other party may seek the advice of an attorney as to any exact language in the Marital Dissolution Agreement. As is stated in the Memorandum of Understanding, the agreement is not final until each party has had the opportunity to consult with an attorney. The party who filed the complaint will arrange for a court hearing. At the court hearing, the attorney will ask several questions as to whether he/she wishes a divorce, whether the agreement is fair and equitable and whether adequate provision has been made for the children. If the answers to these questions is YES, then the divorce will be granted by the judge. The signing of the Final Decree signifies that you are indeed divorced.
After reviewing the above if you have questions and need our assistance in a mediation matter, please call us at (901) 756-7878. Christina Burdette is a Rule 31 listed civil and family law mediator and is a member of the Tennessee Association of Professional Mediators.