Tennessee’s Supreme Court Rule 31 went into effect in 1995. The rule authorizes trial courts to order parties to participate in alternative dispute resolution (“ADR”) before their case goes to trial. It is very common for parties to be ordered to ADR in contested divorce cases. There are two forms of ADR a court can order without the consent of the parties: (1) a judicial settlement conference or (2) mediation. In a judicial settlement conference, the judge or a court officer granted limited judicial authority meets separately with the parties to identify issues where a compromise can be reached. Mediations occur more often because judicial resources are limited. In a mediation, the parties will meet with a Rule 31 listed mediator, who is usually an attorney with experience in divorce law. It is not mandatory for parties to have an attorney at mediation, but it is a sound choice to have one, especially if the other spouse has an attorney because the mediator is required to remain impartial and avoid bias in favor of one party over the other. The mediator must also refrain from providing legal advice.
There are multiple reasons why parties should approach mediation with an open mind. If a case can be resolved at mediation, attorney fees are limited. Trial preparation and attendance require attorneys to spend many more hours on a case than if it settled at mediation and legal fees can climb still more if there are motions after a trial or an appeal is filed. Second, mediation provides a certainty about the result that a trial cannot. Trials generally occur because reasonable people have a disagreement about what should be an appropriate resolution under the law. There is no guarantee the judge will see the case the way you do or provide the relief requested. However, the judge will accept and enforce a divorce agreement reached by the parties so long as the agreement complies with the law. Third, mediation allows a more open discussion about issues than takes place during litigation events like depositions or trials. This is possible in mediation because statements made by parties are not admissible at trial. The neutral is also required to keep information shared by the parties confidential.
Your mediation lawyer will increase your chances of a satisfactory result. A lawyer who understands how conflict resolution works will thoroughly brief the case for the mediator so your position is clearly stated going into the mediation. Your lawyer will also have knowledge about your trial judge’s position on particular issues which can help determine the issues that should be subject to more or less compromise. It is also not uncommon for a successful divorce mediation to end with the drafting of a marital dissolution agreement which will be presented to the court for approval. Your lawyer will help make sure the terms of the agreement are clear and addresses all reasonably expected contingencies.