Divorce Mediation in Tennessee Answers to FAQs

Divorce mediation in Tennessee answers to frequently asked questions about cost of divorce mediation in Tennessee, divorce mediation checklist, tips, mediators, and child custody. How does divorce mediation work? Is divorce final after mediation?

Divorce Mediation in Tennessee

Divorce Mediation in Tennessee

When spouses consider Tennessee divorce, mediation as a settlement process is usually the furthest thing from their minds. But divorce mediation is required in Tennessee law with few exceptions. That is a good thing, because mediation can help parties settle and move on with their lives.

More often than not, by the time the divorce complaint is filed the spouses have already separated. Any communication between them can be difficult and, typically, is only through their divorce attorneys. During the mediation session, a neutral mediator can serve as a communication bridge between the parties. Because mediation is a very important step in the divorce process, spouses should prepare diligently for their time with the mediator.

The questions and answers that follow are intended to demystify the mediation process in Tennessee divorce. Be mindful that all mediations differ, as do the mediators, participants, and circumstances. Consult an experienced divorce lawyer early on about the impact mediation could have on your divorce, child custody dispute, legal separation, or other family law case.

What is divorce mediation in Tennessee?

In general, mediation is an alternative method of dispute resolution. Meaning it is used as an alternative to litigation and trial. Several forms of alternative dispute resolution (ADR) are used in Tennessee, of which mediation is but one. Tennessee divorce mediation, specifically, is the mediation process as tailored to, and as an integral part of, the family law case.  Divorce mediation has helped many spouses reach agreement, even in high conflict child custody cases. Not every mediator’s efforts will result in complete agreement, of course, but diffusing hostilities with partial settlement of key issues can be very helpful. For more detailed information, please see our YouTube video What Happens During Divorce Mediation.

What is the definition of mediation in Tennessee?

Mediation in Tennessee may be defined as ADR facilitated by a neutral third party, the mediator, who assists the parties in reaching agreement on specific issues raised in the divorce or family law case. As a settlement tool, mediation has been utilized in domestic relations cases long enough in Tennessee and in other jurisdictions to have proven itself to be a productive process on many levels. In Tennessee family court, mediation is here to stay for the foreseeable future.

What is Rule 31 mediation?

Rule 31 mediation refers to the Supreme Court of Tennessee rules describing requirements and restrictions related to mediation.  Almost always, any legal reference to mediation in Tennessee describes the process in terms of this particular rule.

Is mediation required in Tennessee divorce?

Technically, yes. Tennessee law requires mediation in all divorces (unless an exception applies) before allowing the parties to have a divorce trial. Depending on the circumstances, some judges may choose to forego the mediation requirement and will agree to hold (or order) a divorce trial without mediation.

How does divorce mediation work in Tennessee?  

Think of divorce mediation as a process for resolving disputes unlike any court hearing or trial. The mediation process begins with selection of a mediator from the court’s approved list of vetted neutrals.

In Tennessee divorce, most mediators are lawyers who have had special training in mediating family law matters. Mediators are neutral facilitators, not decision-makers. The mediator’s loyalty is to a settlement, not to one party or the other.

Typically, the mediation is held at the mediator’s office, whether located in Germantown, Memphis, Collierville, Bartlett, or elsewhere in Tennessee. The attorney who represents a party in mediation may have a prepared settlement proposal and written materials with important facts about the case for the mediator to read.

Be forewarned, mediation is often an all-day affair (sessions running from 9:00 a.m. to 5:00 p.m. or later are not unusual). The mediator is considered to be successful if the spouses reach settlement.

While some nervousness is to be expected, the participants should concentrate their energies on being prepared and thinking clearly. Doing so can pay great dividends and help reduce tension.

What are some divorce mediation tips?

The mediation session is not something to worry excessively about, but it is something to properly prepare for. To get the best results from this settlement process, keep the following divorce mediation tips in mind:

  1. DO NOT become emotionally invested in settlement on that day. Being emotionally invested in settlement is akin to going to the car dealership to shop having already decided to buy, regardless of the price quoted by the salesperson.
  2. DO stay relaxed. Mediation can make for a long day. Stay cool and collected, avoid swinging between emotional highs and lows.
  3. DO bring a relaxing, easy-to-ready book.
  4. DO have extra food to eat with you. You may need to keep your blood sugar up, even if too nervous to eat much.
  5. DO know precisely what you want in your settlement well before showing up for mediation. Make a very detailed list of money, items, assets, debts, support, and everything else you really want.
  6. DO get some moderate exercise a day or two before the mediation. A little exercise, maybe just a long walk, can go a long way toward keeping you relaxed and alert.
  7. DO get to bed early the night before. Get a good night’s sleep.
  8. DO NOT get drunk the night before mediation. Never mediate on a hangover.
  9. DO NOT take any thought-altering medications (such as anti-depressants or sleep aids) the night before mediation or during the mediation unless you are already accustomed to the medication. Keep a clear head.

There is no reason to be fearful of mediation, especially if you are represented by counsel. But do take the process seriously.  For more tips, see our YouTube video, Divorce Mediation Tips.

How does divorce mediation over child custody work?

When the issue being mediated has to do with child custody, whatever agreement the parents reach must comply with Tennessee child custody law and be in their child’s best interest. Mediation has been used to help parents resolve conflicts over parenting time, vacation scheduling, who shall have legal decision-making authority, child care, additional child support (funding a college trust, for example), grandparent visitation, and the like. As you would expect, the mediator must be knowledgeable of Tennessee child custody law. As it is today, most Tennessee mediators are also lawyers. Every professional who mediates child custody disputes has the necessary training before being added to the official list of court-approved, Family Law Rule 31 mediators. However, mediators do vary in their style, personality, and how they approach the case and certain dynamics. Any child custody dispute that is not settled through mediation, settlement conference, or other form of ADR must be litigated and determined by the judge at trial.

Is there a divorce mediation checklist in Tennessee?

Is there a divorce mediation checklist in Tennessee?

While there is no official checklist of things to do when preparing for mediation, there is nothing to prevent you from making your own. Here is a starter list:

  1. Pre-Mediation Plan: Have a pre-mediation planning session with your divorce lawyer to discuss negotiation strategies. Get your ducks in a row, and questions answered, well in advance of mediation.  You should always feel comfortable asking for a conference to discuss pre-mediation strategy.
  2. Mediator Credentials: Learn about your mediator in advance. If he or she has a website with professional biography, then take time to read it. You need to be confident in the process and in the mediator.
  3. Mediator Contract: Read the mediator’s contract. Ask questions. Make sure you understand the contract terms and conditions.
  4. Mediation Cost:  Before mediation begins, know exactly what you will owe the mediator. Does the mediator accept credit cards? If you need to bring a check, then make sure you do.
  5. Attorney’s Fee: Know exactly what you have already paid your lawyer before mediation or how much you owe your attorney as of the last bill that you received. Find out roughly what you will owe your attorney at the end of mediation.
  6. Place of Mediation: Know exactly where the mediator’s office is located. Google the address. Are you worried about arriving on time? Travel to the location a few days before to get oriented.
  7. Proposed Settlement: Prepare a proposed written settlement, from start to finish, including specific terms of your marital dissolution agreement (MDA). Include alimony, division of property, payment of tax obligations, everything. If you have children, then prepare a proposed permanent parenting plan, too, along with child support worksheets.
  8. Asset List: Have a list of all marital assets and properties with valuations, including bank accounts, investments, business interests, real estate, retirement accounts, jewelry, and so on. Know what tangible personal property you want to keep (furniture, vehicles, and fine art, for example).
  9. Debt List: Know what debts are owed on credit cards, mortgages and home equity loans, home equity lines of credit (HELOC), unsecured loans, car loans, and student loans, among others. Are any accounts overdue?
  10. Pending Lawsuits: Know important details regarding any pending lawsuit against you or your spouse (personal injury lawsuit, for instance, or breach of contract action), whether the lawsuit has merit or not. Has anyone filed for bankruptcy?
  11. Disability and Insurance: Know what disability and insurance policies are in effect and any cash surrender values on life insurance.
  12. Retirement Assets: Know everything that you should know about your retirement assets.
  13. Trusts: Know the provisions of any inter vivos trust or testamentary trust that may provide a benefit to one or both spouses.
  14. Tax Matters: Know how applicable tax laws and rules might be mutually beneficial, as with income and capital gains tax (or, conversely, detrimental to one spouse, the other, or both.) Trade or sale? This tax year or next? Joint ownership or sole ownership?
  15. Documents: Know what documents you need to bring. If unsure, ask your lawyer. Know what documents you need to read, which must be provided by the other party (for example, last year’s W-2, credit card bills, investment account statements, corporate tax returns).
  16. Child Custody: If you have minor children, then:

a.  Learn everything you need to know about Tennessee child custody law. Begin with the information on this website.
b.  Carefully review the forensic child custody evaluator’s report and any recommendations from that expert.
c.  Determine in advance the parenting time you desire.
d.  Read the parenting plan form.
e.  Know Tennessee’s parental rights (see the parenting plan form).
f.  Know what additional parenting plan restrictions you want included, if any.
g.  Learn child support strategies and how much child support is likely to be awarded when calculated using the Tennessee Child Support Guidelines.
h.  Learn how parenting time days (more or fewer) can impact child support obligations.

Once you have a starter list, tailor it to suit your personal situation and primary concerns.  For more, see our YouTube video, Preparing for Divorce Mediation.

How do I use a mediator for divorce?

Every mediator has a unique approach to mediating certain types of disputes in Tennessee divorce. Some have encountered certain matters more than others, such as scheduling parenting time with autistic children or dividing professional practices. Experience matters. A Memphis divorce attorney will sometimes recommend a known mediator whose style and approach to dispute resolution may be well-suited to the parties and the circumstances. One who might successfully facilitate a settlement with the best possible outcome.

Although not a recommendation of any particular mediator, a good place to begin searching for the right professional to mediate divorce and family law disputes is the Divorce Mediator Directory for Memphis, Tennessee.

What does a mediator do?

The mediator’s role in settlement negotiations is as neutral facilitator. In the context of divorce mediation, a neutral facilitator is someone whose purpose and focus is to make settlement easier between the parties. He or she communicates the ideas, concerns, and viewpoints of one party to the other, shuttling back and forth between the spouses until settlement is reached or there is an impasse. The mediator helps make an agreement happen without imposing his or her own conditions on the parties and without injecting what is or is not a good settlement offer. As a third party neutral, the mediator has no role in deciding the important issues in the case. Instead, the mediator’s only job is to help spouses and parents find common ground. Believe it or not, even in the most contentious divorces and child custody cases there can be some common ground between the parties. Experienced mediators are very skilled at finding it.  For more, see our YouTube video, What Do Divorce Mediators Do?

What does a mediator do in a divorce?

Mediation can help people reach a settlement in their divorce or family law case. The mediator’s job is to facilitate agreement whenever possible. According to Tennessee Supreme Court Rule 31, the mediator’s role in the divorce settlement process includes “assisting the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping the parties reach voluntary agreements.” When a mediated agreement results, the mediator was successful. While the spouses may be ordered to attend mediation, it remains a voluntary, cooperative process. Most Tennessee judges require that spouses attend mediation before their case will be set for trial.

How does divorce mediation work in Tennessee?

To this day there is a lot of myth and mystery surrounding Tennessee mediation. The process of mediation is quite different than what most people anticipate.

Shuttle mediation is by far the most common mediation style. The mediator gives a brief introduction, describes the mediation process, and ensures he or she has a handle on the basic, important facts of the case. (Not all of the facts, just the important facts for purposes of mediating a settlement.)

Then the attorneys may make a brief opening statement. The attorneys are not required to be present for mediation, but they often attend. After that, the parties almost always break out into separate rooms with their lawyers. The mediator caucuses with one spouse (attorney present), then caucuses with the other, shuttling back and forth. An understanding should be reached with the mediator before caucusing begins as to whether certain information disclosed in the caucus is to be shared with the other party.

What Happens During Divorce Mediation.

The mediator continues to learn about the facts of the situation from both sides throughout the day. Usually, one spouse starts the mediation off with a settlement offer. That offer is presented to the other party who either accepts or counter-offers. This process of offer and counter-offer can take hours. When the mediator is caucusing with one side, the other side may be left waiting for extended periods of time. Bringing a relaxing book to read during those waits can be very helpful.

Understand that oral and written communications made or presented in the mediation process, either by the mediator or the participants, are not admissible as evidence in court. There are limited exceptions, but a mediator cannot be subpoenaed to court or compelled to disclose communications made during the mediation. Nor can the mediator render an opinion about the parties or their positions. This rule is intended to encourage cooperation and candor, so the participants need not fear that their claims and defenses will be compromised if mediation ends without settlement.

In many cases, mediation results in a compromise in a single day. In other cases, it may take more than one session. Every case is different.  For more detail, see our YouTube video, How Long Does Divorce Mediation Take?

When the participant is represented by counsel, any proposed agreement should not be made valid or final until that attorney has reviewed the proposed settlement and has had an opportunity to discuss it with the client. If a party to mediation is unrepresented, then he or she should take the proposed agreement to an attorney for review and consultation before finalizing it.

If agreement is reached at the conclusion of the mediation, then the mediator or one of the party’s counsel will prepare a document listing all of the agreed-upon terms. That document will be signed by both spouses. Once signed, the writing can be enforced by either party against the other and will serve as the basis for drafting the final settlement agreement.  For more discussion, see our YouTube video, What Happens During Divorce Mediation.

Who chooses the mediator?

In almost all cases, the parties’ counsel or the parties agree on a mediator.  If the parties can’t agree, a judge can select a mediator.

How do I select a divorce mediator?

First check with your experienced family law attorney.  If selecting a divorce mediator is up to you, like anything else, do your homework.  Call potential mediators.  Ask direct questions.  Expect direct answers.  Ask about fees and payment requirements.  There are mediators who are just better at it than others.  Experience matters. Neutrality matters.

What is the cost of divorce mediation in Tennessee?

Each mediator handles mediation fees differently. Having said that, most mediators will ask each spouse to pay one-half of the mediation fee.  Most will require the fees to be paid at the beginning of mediation with an adjustment coming later depending on how long the mediation lasts.  The vast majority of mediators charge between $100 per hour and $300 per hour to be split by the parties.  (Of course, some may charge more or less.)  So, a full day (8 hours) with a mediator who charges $250 per hour will cost each party $1,000 for the mediator’s fees.

Who pays the mediator’s fees?

The parties should agree on who pays the mediator’s fee prior to scheduling mediation.  If the parties can’t come to an agreement regarding who pays the mediator’s fee, one party may ask the court to order the other party to pay the mediator’s fees. Generally, if both spouses have access to some funds, the courts will order an equal sharing of the mediator’s fee. When spouses share the cost of mediation equally, they are equally vested in the process.  However, the judge may order one spouse to pay the entire cost of mediation (for example, when the other party is the economically dependent spouse). If both spouses are unable to bear the cost of mediation, the State of Tennessee may subsidize mediation or the court may waive the requirement of mediation altogether, depending upon the circumstances.

What should I expect during divorce mediation?

Every form of alternative dispute resolution has its benefits and detriments, including mediation. Consider the following:

  1. Neutrality: The mediator is a neutral third party equipped with dispute resolution skills, training, and experience in helping participants reach agreements. The mediator is not an advocate, but a facilitator who should leave personal bias out of the process.
  2. Decorum: Mediation is not a free-for-all. Rule 31 of the Rules of the Supreme Court of the State of Tennessee lists the parameters, rules, and concepts that apply to ADR and mediation. If a party tells the mediator before caucusing not to disclose something to the other spouse, for example, then the mediator cannot do so. (There are exceptions, as with assertions of child abuse.)
  3. Voluntary: Mediation is a voluntary, cooperative process in that a person is not required to settle if he or she chooses not to. The only requirement is that participants give the mediation process a good-faith effort and remain open to the possibility of settlement.
  4. Representation: At any time during mediation, a party always has the right to speak in private with his or her attorney, in person or on the telephone. A spouse who participates in mediation does not surrender or waive the right to have attorney representation throughout the mediation process. Tennessee mediators should always encourage parties to have representation at all stages of the mediation process. If the mediator suggests otherwise, do not use that mediator and consult a lawyer. A mediator should strongly advise both parties be represented by counsel during the mediation process.
  5. Quitting: Either party can terminate mediation at any time. However, there are strategic reasons for why it is not a good idea to be the first to leave the negotiating table. Listen to the mediator’s advice on whether or not the mediation should be ended.
  6. Partial Settlement: Mediation, if not 100% successful, can still reduce the number of disputed issues that must be resolved by the court at trial. Partial settlement is not failure, by any stretch of the imagination.
  7. Negotiation: Many mediations that do not immediately result in settlement will do so later in the days or weeks following the formal mediation. Time plays an important role in settlement negotiations. For instance, if mediation is set 45 days or so before trial and no settlement results at the mediation, often one party sends over another settlement proposal prior to trial. That proposal reflects negotiation efforts from the mediation.
  8. Power Imbalance: Although mediators should be very conscious of an imbalance of power between the parties, there is always the possibility that a less sophisticated spouse or emotionally dependent party could be taken advantage of. The unrepresented spouse should have concerns about a power imbalance in mediation. By contrast, the spouse with a lawyer is unlikely to be manipulated. While it is common for one spouse to be perceived as weaker, the mediation process is designed to prevent a stronger spouse from controlling the negotiations. An ethical and experienced mediator will take balance of power into account and will reject cases where there is a likelihood of fraud or unfair dealing.
  9. Attorneys Role: The Tennessee family lawyer can play a very important role in divorce mediation. The lawyer advises his or her client on the issues, makes sure that the mediation and any resulting agreements are fair, just, and reasonable, and writes or reviews the settlement agreement to ensure it contains everything as agreed and does not omit very important legal terms and conditions.
  10. Mandatory: Mediation is a voluntary process, but participation is still mandatory. If children are involved, then mediation will be required. Even if there is no child custody element to the case, most Tennessee judges will order both parties to mediate over either spouse’s objection. The decision to enter into an agreement is purely voluntary, but parties are ordered to try and settle – to put forth a good faith effort at mediating their disputed issues. Being ordered to mediate does not mean the spouses must reach an agreement, it means they must really try.
  11. Mistake: There is only one mistake anyone preparing for mediation can make, and that is to become emotionally invested in reaching a settlement the day of mediation. A person may so look forward to the end of litigation that she will agree to almost anything to ensure settlement. Or a person may expect a settlement on his perceived fair terms and suffer very serious emotional turmoil if the case does not settle. Losing emotional control erodes judgment and gives too much power to the other person. Try to see mediation for what it is, a good opportunity. Nothing more, nothing less.
  12. Case Value: Understanding the value of one’s case is critical in mediation. Whether settling or trying a case, the attorney must know what the case is worth. What is the value based upon records, appraisals, and documents in the client’s possession? This should be prepared well in advance of mediation. The marital balance sheet should be an accurate reflection of the marital estate (assets and debts). However, mediators often direct the parties to analyze settlement proposals against the equitable share of the marital estate minus legal fees through trial, time missed from work to be in court, cost of supportive mental health professional, expert witness fees, litigation costs, and the time value of money.

Because every case is different, talk to a Tennessee divorce attorney about mediation strategy and the benefits and detriments applicable to your specific circumstances.

Tennessee Divorce Mediation Works

Mediation works in family law cases. Statistics show that 60% to 85% of divorce and post-divorce mediations result in settlement. From a cost containment standpoint, it is much less expensive to prepare for mediation than for trial. Additionally, much of the work required for mediation must also be done for trial. This means that, even if the case does not settle, mediation is not always as expensive as it may first appear. If the case does settle, then mediation almost always results in a cost savings.  To learn more, see How Often Do Divorces Settle in Mediation?

Why have an attorney during mediation?

Three of the primary functions of attorneys are to investigate, negotiate, and eliminate variables. As one might imagine, negotiating a divorce settlement can be an emotional and legal minefield. The other spouse’s lawyer may use unfair negotiating tactics and strategies. Having your own attorney explain to you in clear, concise, and simple terms that the opposing attorney may be “testing the waters” with an overly aggressive negotiating position – and advise you on the appropriate responses – can be a valuable service.

Lastly, any agreement must be with the party’s complete understanding and consent. Only agree to a settlement if you are absolutely sure you are comfortable with the terms. Becoming comfortable with the terms could take you or the other spouse a day or two after the mediation. Take time to reflect and be as certain as you can be.

How long after mediation is divorce final in Tennessee?

If the parties settle, the paperwork (marital dissolution agreement, permanent parenting plan, child support worksheets, and proposed final decree of divorce) needs to be finalized, executed, and presented to the court for approval.  If the divorce waiting period has expired, the attorneys will seek to set the final hearing on the court’s next available “divorce docket.”  If the court approves the settlement terms and paperwork submitted to it, the court will likely grant the divorce at that court appearance.  Some judges can be more particular than others when it comes to specific language and technical requirements contained in and prepared along with the settlement paperwork.  In those situations, a lawyer may need to make a change to certain terms of the paperwork before final entry and signing by the judge.  See our YouTube video, What Happens if Divorce Mediation is Successful?

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