What is Mediation?
You may have heard the term “mediation” in regard to divorce or other legal matters but don’t quite know what it means. Mediation is a type of formal settlement conference where each party attends with their lawyer and a neutral mediator is used to negotiate back and forth. This is usually a required process in a divorce before it can be set for a trial.
Who Is the Mediator?
The mediator is usually another divorce attorney who has completed family mediation training and is listed as an approved mediator by the Alternative Dispute Resolution Commission (ADRC) in Tennessee. The mediator is a “formal neutral” which makes them sort of like a judge in the sense that they have immunity from liability in the process, but they are different from judges in that they don’t make any decisions for you. They just facilitate a conversation and exchange offers between the parties. Lawyers all have regular mediators that we use often with whom we have a positive working relationship to help get your case resolved.
How Does it Work?
The lawyers agree between themselves which mediator to use and what day to schedule it. The clients will be responsible for splitting the costs of the mediator between themselves and will pay the mediator directly. This usually costs between $350-$1000 per client depending on the mediator and how long we are there. The parties are in separate rooms with their lawyers and the mediator goes back and forth between the rooms discussing the case and exchanging offers. This process usually takes between two to six hours.
Confidentiality
The whole process is covered by confidentiality, so neither side is allowed to use settlement discussions at trial, and the mediator can never be called to testify about who said what or offered what. The whole point of the process is to get the parties together and allow everyone to speak freely about what they want and why so a compromise can be reached. There may be information shared with the mediator that we will tag as private and not allow them to share it with the other side at mediation. Usually this is because there is some reason we are holding a certain position that the other side is unaware of, such as the client is planning on getting remarried as soon as possible after the divorce or something like that.
Resolution
In the vast majority of cases, the parties will reach an agreement at mediation and the case will be settled. When that happens there is usually a full set of documents prepared right then at mediation to close the case in the form of a Marital Dissolution Agreement and Permanent Parenting Plan. If not, there will be a brief writing of terms to be signed by the parties that will later be drafted into a formal agreement. If the case doesn’t settle, then the only thing left to do is go to trial. Regardless of the outcome the mediator will file a report that says the parties attended and either did or did not settle the case.
