Mediation - Mullins Thomas Whitfield Law

Mediation

Frequently Asked Questions

With the increasing complexity of society, a push has been made to create and foster new methods to resolve disputes within families in more responsively.

What Is ADR?

“ADR” stands for “Alternative Dispute Resolution.” The idea behind ADR is that people are given the chance to consensually resolve or settle their disputes with others with the assistance of a trained facilitator, who is known as a “neutral.” ADR is an umbrella term that describes various different processes to resolve disputes, such as mediation, case evaluation, arbitration (binding or non- binding) or a judicial settlement conference. In Tennessee if you have a lawsuit pending in our Circuit or Chancery Courts, the Judge may order you to participate in one of these processes.

What Is Mediation?

What Kinds Of Cases Can Be Mediated?

What Are The Benefits Of Mediation?

Mediation is a flexible process in which the parties are given the opportunity to make informed decisions. Mediated agreements may have an ability to satisfy interests and goals of the parties that a Court’s decision or ruling may not be able to provide. Resolution of a case through mediation often saves time, money, and feelings and if agreement is reached on all issues, enables the parties to avoid a contest in court. See PROs and CONs below.

How Does Mediation Work?

The process is designed to be completely consensual and provides the forum to often overcome communication problems and other hindrances to resolution of disputes. Mediation is a completely confidential process and the mediator may only report back to the judge in your case that the matter settled or did not settle without any details. Mediators do not function in a judicial capacity and are not there to render a ruling on your dispute. Mediations can take place with lawyers present or without lawyers present depending on the parties’ need for legal advice during the process, as mediators are prohibited from rendering legal advice to the parties.

What Are The Traits Of A Good Mediator?

Do I Need A Lawyer For Mediation?

A mediator is considered a “neutral” and as such is not permitted to give legal advice or to “represent” either party or both parties to the mediation. Mediators are able to help the parties develop the documents needed to get a divorce or post-divorce agreements memorialized for the court however. In some cases, matters are simple enough to move forward without legal advice. Other times, legal advice is essential to making certain decisions and the mediation can be suspended to obtain advice.

Where Do I Find The Tennessee State Rules Concerning ADR/Mediation?

How Does Mediation Differ From Traditional Judicial Processes In A Divorce?

IN A TRIAL
IN A MEDIATION

Evidence Presented

Judge renders a decision on generally all issues—

- - - child’s residence
    - parental responsibilities and decision-making
    - division of property
    - division of debt
    - child and spousal support
    - reimbursement of attorney fees and costs of litigation

Appeal to Tennessee Court of Appeals necessary to overturn judge’s decisions.

Advantages And Disadvantages Of Mediation

Pros

Greater creativity and flexibility with mediation.
Opportunity to deal with matters in time sensitive manner.
Creates new model for family for dealing with future conflicts which arise.
Takes place in one or more sessions.
With or without lawyers present, as the parents and their counsel agree.
Is “interest” based rather than positional.
Allows parties to have joint control over the result.
Not without conflict, but less adversarial than trial.
Confidential, no prejudice to the case results.
Mediator’s job is to ensure fair and balanced process.

Cons

Timing must be right with both parties realizing that they have something to gain by reaching a resolution.
In the case of a power imbalance in the family, as in the case of domestic violence, mediator must have special ability to keep the playing field level. Choice of mediator can be very important.