In this installment we will explore mediation and the mediation process. Future installments in this series will focus on mediation in specific types of cases.
Mediation is a facilitated negotiation conducted by a third party neutral known as a mediator. The mediator assists the parties to a conflict in identifying issues, exploring solutions and in reaching a mutually acceptable resolution. The mediator does not represent either party and should not act as a legal representative for either party. A party participating in mediation may be represented by legal counsel or may appear unrepresented. It is advisable to appear with counsel if represented.
Mediators in Tennessee are governed by Tenn. S. Ct. R. 31. (See http://www.tncourts.gov/rules/supreme-court/31 for the full text of Rule 31.) They are commonly referred to as Rule 31 Mediators. Attorneys, and others, who have met the training and experience requirements set forth under Rule 31 to conduct mediations in family law cases are known as "Rule 31 Listed Family Mediators". Attorneys may also be listed as having met the requirements to mediate other civil cases and also may have received training to address domestic violence issues. A directory of Tennessee Rule 31 Mediators can be found at http://www.tncourts.gov/programs/mediation/find-mediator.
What types of cases may be mediated? All types of family and civil cases may be mediated. Either by statute or by local court rule, most family law cases must be mediated prior to scheduling them for trial. In later entries in this series we will explore the different types of family law cases and how mediation is used as an effective tool to resolve disputes. It is also becoming more common to mediate civil lawsuits in an effort to reach settlements prior to incurring the expenses associated with litigation.
What is involved in the mediation process? The parties or the parties' attorneys select a mutually agreed upon mediator. The court may aid in the selection of a mediator if one cannot be agreed upon. Each side should then provide to the mediator a summary of the disputed issues as well as any other information they may wish to share. This may include, but is not limited to, copies of court filings, income and expense information, debts needing to be addressed, proposed parenting plans and other information. The more information provided to the mediator, the better prepared the mediator will be for the session.
Both parties should appear for the mediation session with their attorneys. The attorneys will provide legal advice and counseling to their respective clients. It is not the duty of the mediator to provide legal advice; however, the mediator does owe a duty of confidentiality to the parties and will only share information with the other side by permission.
Many mediators in family law cases will place the parties in separate rooms so as to reduce the possibility of conflict. The mediator usually begins the session by reviewing the mediation process with the parties and most likely will speak with the Plaintiff or Petitioner first since they are the party who initiated the action. The mediator will go back and forth between the parties until an agreement has been reached or the session is otherwise terminated.
What happens if an agreement is reached? The parties may reach a full or partial agreement resolving their dispute. A mediation agreement, agreed order, marital dissolution agreement or parenting plan, or other appropriate document will be drafted to reflect the agreement of the parties. It is important to note that in most cases any agreement reached in mediation that is signed by the parties may be binding and a party may not rescind the agreement after mediation. Parenting Plans and other orders providing for the care and support of children are still subject to approval by the court. A party participating in mediation should consult with their attorney about the binding effect of a mediation agreement before signing.
When should you schedule mediation? Parties may mediate a case prior to litigation, during litigation and even after litigation such as in post-divorce or post-parenting plan modification actions. Mediation may be conducted in an effort to resolve post-divorce and post-parenting plan modification actions. In fact, mediation is often required in these matters either before initiating litigation or certainly prior to trial. Exceptions may be made by the court in emergency matters. Post-divorce and post-parenting plan mediations usually involve a need to modify a parenting schedule because of changes in the needs of children, parental relocation, changes in work schedules and many other circumstances. Parties may also attempt to reach an agreement in divorce matters prior to filing a complaint. Mediating these issues prior to, or soon after, filing a lawsuit and sometimes even prior to hiring legal counsel may save both parties money and reduce the likelihood of increased tension and conflict.
In divorce and paternity cases, and in some post-litigation matters, it is sometimes better to not schedule mediation too soon. It may be necessary to conduct thorough discovery so that assets, debts and other issues needing to be resolved may be more clearly defined. This will prevent the likelihood of overlooking serious issues that may not easily be resolved after an agreement has been reached. It is also sometimes better to wait until tempers have cooled and emotional wounds have somewhat healed so that parties are able to focus on the future and resolving their case rather than focusing on the past.
Why should you mediate? You should mediate because it gives you control over the outcome, minimizes emotional angst and saves you money. Judges have only a brief opportunity to learn about you and your problems before making a decision that may have major consequences for how you and your children live the rest of your lives. Mediation provides you an opportunity to control the outcome and fashion an agreement that suits you. It has also been shown that people are more likely to follow the terms of an agreement than they are to follow the terms of an order that is imposed upon them. Mediation is also often less expensive than preparing for and participating in a trial. Mediation can bring an end to the dispute and allow you to begin focusing on the future.
In Part III we will examine the effective use of mediation in divorce cases. David L. Scott is a Rule 31 listed General Civil/Family Mediator. You may contact the Law Office of David L. Scott if you are interested in scheduling mediation by calling (615) 896-7656.