In Tennessee, adjudication of a divorce can occur in two ways. You and your spouse and enter into a marital dissolution agreement whereby division of debts and assets are agreed to. If a marital dissolution agreement cannot be accomplished then a trial must occur before the circuit or chancery court. However, prior to having a final trial a mediation between you and your spouse must occur by a “rule 31” mediator. The Tennessee legislature enacted T.C.A. 36-4-131(a) where each party of a divorce action must attempt to settle their disputes in a mediation. However, there are some exceptions to this general rule, such as those found in T.C.A. 36-4-131(b):
1. If either party cannot financially afford the cost and expense of hiring a mediator (but the requirement still applies if the mediator’s fee is waived or subsidized by the state);
2. If the cost would be an “unreasonable burden” on either party;
3. If the parties have filed a Marital Dissolution Agreement, Agreed Order or Final Judgment addressing all issues;
4. If a settlement conference has been held with the court or special master;
5. If the court believes impasse will result from mediation.
6. “For such other good cause as may be shown.
In my experience you will find that certain counties or judges will not enforce the mediation statute proclaiming they are not in the local rules. This can be grounds for appeal if your trial does not go your way. In Davidson County, the Fourth Circuit will not waive mediation without good cause such as the above referenced exceptions.
Pursuant to Tennessee rules of evidence, discussions that occur in the course of settlement negotiations cannot be disclosed at trial. Any documents that are drafted in the course of mediation cannot be entered in as proof unless it can be shown that they were not drafted merely for the mediation.
What is the primary responsibility of the mediator ? It is the mediator’s job to try and help couples resolve some or all of their contested divorce issues. The mediator won’t force the parties into an agreement, but will work with both spouses to help them arrive at their own solutions on divorce-related issues, including the division of property and debts, and alimony. With child custody disputes, parents are required to attend mediation to work out a parenting plan that resolves custody and visitation.
Divorce mediation typically involves one of two basic formats: 1) the parties, husband and wife, sit together with the mediator; and 2) the husband and wife are in separate rooms and the mediator works between them. The specific type of mediation process which works the best, depends heavily upon the facts of each divorce case. Certainly if domestic violence is possible it is probably better and safer to utilize the separated mediation style. Domestic violence mediation is usually performed by a mediator who is specially trained in such issues.
Taking a case to trial is timely, costly and risky. Tennessee law grants judges considerable discretion in making determinations regarding property division, child custody and visitation. The advantage of mediation for each party is that they can manage their risk in achieving an outcome that they feel comfortable with.
There are some cases where I advise the client that mediation is not worth the time or expense particularly where child custody is a major issue for the court. Mediation is proper when both parties can proceed in good faith and each want to avoid trial if possible. I have often seen however where one spouse can be motivated by their attorney with overreaching expectations from the court such as exorbitant alimony. The pursuit of alimony or inequitable division of assets can lead to such unreasonable posture rendering mediation inappropriate and costly.
About Roland
