Many courts are now requiring litigants to participate in mediation prior to proceeding to a trial, some even require completion before a trial can be set. So, what is mediation?
The very basic answer is that mediation is a voluntary process where a neutral third party tries to help two or more people with a disagreement find resolution. For purposes of this blog series, I will be talking about mediation of family issues – divorce, child custody, child support, alimony, or changing a prior order or agreement.
In Tennessee, the Administrative Office of the Courts, as well as the Alternative Dispute Resolution Commission regulate a group of mediators that have completed specific screening and training – Rule 31 Listed Family Mediators. To be approved, or “listed,” one of the requirements is to complete an approved 46-hour training, which covers a wide variety of topics to help people resolve their differences.
The mediator is there to try and understand the position of each party, and identify ways that an agreement can be reached that both parties will sign off on in the end. The mediator can’t give you legal advice, so most of the time lawyers attend mediation with their clients. You can’t be forced to agree to anything, and you can’t be forced to leave with an agreement. You have total freedom to leave if the process does not work for you.
Mediation is confidential, which means that offers passed back and forth can’t be brought into Court later and used against you. Negotiations are not admissible under the Tennessee Rules of Evidence. This encourages participants to offer things they may not otherwise agree to in order to reach an agreement. That also means that neither of the parties can call the mediator to testify about what happened in the mediation. There are some exceptions, for example if anyone discloses abuse of a child.
Mediation is based on full disclosure, so if either of the parties lies (including lies by omission) about something important to the agreement, the agreement could be set aside by the Court. This gives the participants incentive to tell the truth, or risk their agreement being thrown out (and everyone knowing that it was because they were not honest).
It doesn’t matter whether or not you have a lawyer, or even whether or not you have already filed something with the Court, you can try mediation anytime you have something you’d like to resolve without a trial. As long as both parties are willing to attend the mediation, you have a shot at a resolution outside of the courtroom.
If you are trying to resolve an issue, and think mediation may be the answer, give me a call at (615) 452-8030.