Mediation in Tennessee Divorce

Divorce Mediation in Tennessee

Tennessee divorce mediation is designed to reduce stress and prevent trials. Learn about Supreme Court of Tennessee Rule 31, the mediation process, mediators, introduction and basics, exceptions to the requirement for mediation, and domestic violence issues.

Every spouse considering Tennessee divorce should know the basics of how mediation works. Mediation is not optional in Tennessee divorce law, it is required in all cases with few exceptions (discussed below). As used in child custody disputes, mediation can help parents resolve issues over parenting plans, legal decision-making authority, parenting time schedules, and visitation.

In Tennessee, mediation is alternative dispute resolution (ADR). That is, a way to avoid litigation and trial when possible. Avoiding litigation is thought to be a positive thing when done for the right reasons, saving on financial resources, stress, and time – all significant plusses. One caveat, though. Participating in mediation does not guarantee that settlement will be reached or that litigation will become wholly unnecessary. Every case is different. But for the majority of those who participate in divorce mediation, either privately or by court order, it is well worth the investment of time, effort, and cost.

For more information about mediating disputes in Tennessee divorce and child custody cases, read Divorce Mediation in Tennessee Answers to FAQs.

Confidentiality of Information and Documents in Tennessee Mediation

One of the main reasons divorce mediation is so successful is that what happens in mediation stays in mediation. The mediator cannot tell the judge anything except whether or not the spouses mediated in good faith and whether or not the process resulted in settlement.

For mediation to be an effective settlement device, the participants must have confidence in the mediator and in the process. If their words and disclosures could be used against them in later proceedings, then they will lose confidence in the entire mediation process as an alternative to litigation.

Consequently, the mediator cannot divulge information or disclose communications that were part of mediation. All is confidential and the mediator cannot be compelled to testify in court, or in any proceeding, without both spouses agreeing in writing to allow that testimony. Additionally, the documents, reports, and records prepared by the parties and the mediator specifically for mediation are confidential and privileged under Tennessee mediation law. T.C.A. § 36-4-130.

There are five circumstances where otherwise confidential communications exchanged in the course of mediation could be disclosed:

(1) When all parties to the mediation agree, in writing, to waive the confidentiality of the written information;

(2) In a subsequent action between the mediator and a party to the mediation for damages arising out of the mediation;

(3) When statements, memoranda, materials and other tangible evidence are otherwise subject to discovery and were not prepared specifically for use in and actually used in the mediation;

(4) When the parties to the mediation are engaged in litigation with a third party and the court determines that fairness to the third party requires that the fact or substance of an agreement resulting from mediation be disclosed; or

(5) When the disclosure reveals abuse or neglect of a child by one (1) of the parties.

T.C.A. § 36-4-130(b)

Although various exceptions to mandatory mediation are discussed below, those exceptions should not be used as an excuse to litigate instead of mediate. If you have concerns about mediation, consult an experienced divorce attorney.

Exceptions to Requirement of Divorce Mediation

Tennessee Code Annotated sets forth procedures and restrictions on mediation in the family law case. T.C.A. § 36-6-409. Whether a divorce, action for separate maintenance, or child custody dispute, mediation is required. However, a spouse may ask the court to waive the requirement of mediation or to extend the period within which mediation must take place. This assumes the reasons for waiver or extension fall within the statutory exceptions to mandatory mediation.

When the divorce is excepted from the requirement of mediation, litigation remains available to the spouses (but they could always reach settlement through negotiation or some other form of ADR, such as a settlement conference). Exceptions to the requirement of mediation are listed in T.C.A. § 36-6-409(4) which prohibits the court from ordering mediation when it finds any of the following:

(A) Finds that any limiting factor under § 36-6-406 applies;

(B) Finds that either parent is unable to afford the cost of the proposed dispute resolution process, unless such cost is waived or subsidized by the state;

(C) Enters a default judgment against the defendant; or

(D) Preempts such process upon motion of either party for just cause;

More specifically, we need to discuss the reference to T.C.A. § 36-6-406 which is a very important one, as you will see.

Generally, T.C.A. § 36-6-406 places restrictions on temporary and permanent parenting plans, removing mediation and ADR from certain types of cases involving children. The limiting factors referred to in 4(A) above involve restrictions on the use of mediation as ADR when parents are required to enter into a parenting plan for raising their minor children, but there is a serious problem to consider.

There are two categories of cases where mediation should not be ordered. Both are a direct consequence of parental misconduct or worse:

• 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.

Domestic Violence Exception to Mediation

What if an order of protection is in effect (not necessarily from a Tennessee court)? Or there is a finding of domestic violence? Or there was a criminal conviction of domestic abuse in the family? Can mediation be ordered in those circumstances? Sometimes, yes, but only with the victim’s agreement to participate in mediation. Talk to your lawyer.

Under T.C.A. § 36-4-131(d)(1), when there is an order of protection, domestic violence, or criminal conviction of domestic abuse, the court cannot order or refer spouses into mediation unless all of the following are true:

(A) Mediation is agreed to by the victim of the alleged domestic or family violence;

(B) Mediation is provided by a certified mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and

(C) The victim is permitted to have in attendance at mediation a supporting person of the victim’s choice, including, but not limited to, an attorney or advocate. No victim may provide monetary compensation to a non-attorney advocate for attendance at mediation.

Divorce Mediation in Tennessee

Other Exceptions to Mandatory Mediation in Tennessee Divorce

There are several other circumstances that may remove mediation as a requirement in the Tennessee divorce. Only one of those exceptions has to do with the spouses’ ability to pay the costs of mediation, though. Take a closer look.

• Inability to pay for cost of mediation. There is an exception for spouses who cannot afford to pay the costs of mediation. In some instances, however, the State of Tennessee may subsidize the cost of mediation or, in the alternative, the costs of mediation may be waived. If there is no subsidized mediation and no cost waiver, and it would be an unreasonable financial burden on a spouse (or both spouses), then mediation should not be ordered. T.C.A. § 36-4-131(b)(2).

• Stalemate is the likely result of mediation. One exception to the requirement of mediation in Tennessee divorce is if the court finds that the spouses are intransigent, far apart in their positions, or the circumstances are so difficult that mediation has a strong likelihood of ending with an impasse. Essentially, if the court believes mediation for a specific couple will end in deadlock, then dispute resolution for these spouses is through litigation and trial. T.C.A. § 36-4-131(b)(5).

• Spouses participated in a settlement conference. A settlement conference is another ADR process used in Tennessee divorce and family law cases to resolve issues without litigation or trial. A judge or special master (not a mediator) presides over the settlement conference at which both spouses present their cases. The presiding judge or special master, who is quite experienced in family law, remains neutral and does not issue any binding orders. Instead, he or she provides an opinion on the merits of each party’s case. The settlement conference often leads to a final settlement agreement when one or both spouses come to understand the unreasonableness of a position or the tenuousness of an argument on one or more disputed issues. Tennessee does not require spouses who went through the settlement conference process to also participate in mediation (although they certainly could do so privately). T.C.A. § 36-4-131(b)(4).

• Spouses have a Marital Dissolution Agreement when grounds for divorce are irreconcilable differences. Not surprisingly, exceptions to the requirement of mediation are considerate of existing settlements. The Marital Dissolution Agreement (MDA) is a settlement agreement. More often than not, spouses are able to negotiate with the assistance of their attorneys and arrive at an agreement. If the spouses have no minor children, their divorce grounds are irreconcilable differences (marital fault is neither alleged nor proven), and they have an MDA with no outstanding issues remaining, then mediation is not required. (If the MDA only addresses some issues, with other issues remaining, then mediation is still required on the outstanding issues.) When the Tennessee divorce involves minor children, parents must have a written parenting plan, too. T.C.A. § 36-4-131(c).

• Spouses have an MDA when grounds for divorce are based on marital fault. If the grounds for Tennessee divorce are adultery, abandonment, or other marital fault, and the spouses have an MDA resolving all of the issues in their divorce, then mediation is not required. T.C.A. § 36-4-131(b)(3).

Here is an important caveat: If either the MDA or the parenting plan are defective or deficient in some way and do not get approval from the court, then the requirement of mediation will be reinstated. T.C.A. § 36-4-103(g).

• Other sufficient cause for why mediation should not be ordered. The statute leaves open the possibility that there are other reasons and circumstances for why mediation should not be ordered, leaving the matter to the court’s findings and discretion. T.C.A. § 36-4-131(b)(6).

To learn more about property settlements and MDAs, read about the Tennessee Divorce Process: How Divorces Work Start to Finish.

Tennessee Court Rules on Mediation

Divorce mediation in Tennessee is an Alternative Dispute Resolution (ADR) process which refers to those proceedings used by the courts to facilitate settlements between spouses. The theory is that many cases that would otherwise result in trial can be resolved sooner if there is a formal process by which the parties meet to discuss the issues in the case. The ADR process, and mediation, is controlled by Supreme Court of Tennessee Rule 31.

Selected Provisions of Tennessee Supreme Court Rule 31

The following selected provisions of Tennessee Supreme Court Rule 31 represent only a small portion of the whole rule. For a more in-depth understanding of ADR and what is required of mediators and mediation in Tennessee courts, please read Rule 31 in its entirety.

RULE 31

1. Application

… Pursuant to the provisions of this Rule, a court may order the parties to an eligible civil action to participate in certain alternative dispute resolution proceedings.

2. Definitions

…        

(d) “Case Evaluation” … is a process in which a neutral person or three-person panel, called an evaluator or evaluation panel, after receiving brief presentations by the parties summarizing their positions, identifies the central issues in dispute, as well as areas of agreement, provides the parties with an assessment of the relative strengths and weaknesses of their case, and may offer an evaluation of the case.

…

(j) “Mediation” is an informal process in which a neutral person conducts discussions among the disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute.

…

(m) “Neutral” is an impartial person who presides over ADR proceedings as defined in this Rule.

…

3. Initiation/Order of Reference

(a) Rule 31 ADR Proceedings may be initiated by the consent of the parties or by the entry of an Order of Reference.

(b) Upon motion of either party, or upon its own initiative, a court, by Order of Reference, may order the parties to an Eligible Civil Action to participate in a Judicial Settlement Conference or Mediation. With the consent of the parties, trial courts are also authorized to order the parties to participate in a Case Evaluation.

(c) Any Order of Reference made on the court’s own initiative shall be subject to review on motion by any party and shall be vacated should the court determine in its sound discretion that the referred case is not appropriate for ADR or is not likely to benefit from submission to ADR. Pending disposition of any such motion, the ADR proceeding shall be stayed without the need for a court order.

…

5. Reports

(a) The Order of Reference shall require the Rule 31 Neutral to submit a final report pursuant to Rule 5.06, Tenn. R. Civ. P., with the court at the conclusion of the Rule 31 ADR Proceeding. The final report shall state only: (i) which parties appeared and participated in the Rule 31 ADR Proceeding; (ii) whether the case was completely or partially settled; and (iii) whether the Rule 31 Neutral requests that the costs of the Neutral’s services be charged as court costs. The report shall be submitted within the time specified by the court in the Order of Reference. In the event the Order of Reference does not specify a deadline, the final report shall be submitted within 60 days of the initial meeting with the parties, or within the time period specified by the court.

6. Participation of Attorneys

Attorneys may appear with clients during ADR proceedings.

7. Inadmissible Evidence

Evidence of conduct or statements made in the course of Rule 31 ADR Proceedings and other proceedings conducted pursuant to an Order of Reference shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408.

8. Costs

The costs of any Rule 31 ADR Proceeding, including the costs of the services of a Rule 31 Neutral may, at the Rule 31 Neutral’s request, be charged as court costs. …

The court may, in its sound discretion, waive or reduce the costs of a Rule 31 ADR Proceeding.

…

Appendix A. Standards Of Professional Conduct For Rule 31 Neutrals

1. Preamble

…

(b) Neutral’s Role. In dispute resolution proceedings, decision-making authority rests with the parties. The role of the Neutral includes but is not limited to assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.

(c) General Principles. A dispute resolution proceeding under Rule 31 is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize:

(1) the needs and interests of the participants;

(2) fairness;

(3) procedural flexibility;

(4) privacy and confidentiality;

(5) full disclosure; and

(6) self-determination.

…

4. The Dispute Resolution Process

(a) Orientation Session. On commencement of the Rule 31 ADR proceeding, a Neutral shall inform all parties that settlements and compromises are dependent upon the consent of the parties, that the Neutral is an impartial facilitator, and that the Neutral may not impose or force any settlement on the parties.

(b) Continuation of a Rule 31 ADR Proceeding. A Neutral shall not unnecessarily or inappropriately prolong a dispute resolution session if it becomes apparent that the case is unsuitable for dispute resolution or if one or more of the parties is unwilling or unable to participate in the dispute resolution process in a meaningful manner.

(c) Avoidance of Delays. A Neutral shall plan a work schedule so that present and future commitments will be fulfilled in a timely manner. A Neutral shall refrain from accepting appointments when it becomes apparent that completion of the dispute resolution assignments accepted cannot be done in a timely fashion. A Neutral shall perform the dispute resolution services in a timely and expeditious fashion, avoiding delays wherever possible.

… 

7. Confidentiality

(a) Required.  A Neutral shall preserve and maintain the confidentiality of all dispute resolution proceedings except where required by law to disclose information.

(b) When Disclosure Permitted.  A Neutral conducting a Rule 31 Mediation shall keep confidential from the other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure.

(c) Records.  A Neutral shall maintain confidentiality in storing or disposing of records and shall render anonymous all identifying information when materials are used for research, training, or statistical compilations.

Resources, References and More:

• Suzanne Landers: Divorce Mediator Interview
• Divorce Mediation in Tennessee Answers to Frequently Asked Questions
• Memphis Tennessee Divorce Mediator List and Directory
• Tennessee Family Law Blog – Mediation Category
• What is Mediation?  Tennessee Courts
• Find a Mediator: Tennessee Courts
• Tennessee Divorce Laws
• Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce