Mediation is simply a process used to try to get two parties to come to an agreement, with one person, a mediator, serving as a go between to relay their respective positions between each other if cases where they can not stand to even be in the same room, and where the mediator also tries to determine what issues are actually of serious importance to each side and on what issues there might be room for give -- room for negotiation.

        Besides being a process to reach agreement, in custody or visitation cases where the Parenting Planning rules come into play, mediation is one other very important thing -- mandatory.  The statute setting out the process to try to reach agreement on parenting requires it.  Click here to read TCA 36-6-408, the statute setting out the process.

        Under the statute every parent with minor children in a divorce case must attend a four hour seminar on the impact of divorce on children, and every original divorce complaint or petition must include a parenting plan (if the other side disputes the proposed parenting plan they must include their own proposal when they file a response to the divorce complaint), and all disputes involving the parenting plan must be mediated before they can go before a judge.  For information the Hamilton County Circuit Court Clerk has prepared on this mediation and a schedule for the required seminar on the impact of divorce on children, click here.

        The mediatiator will try to facilitate agreement, keep the parties focused on the issues at hand, instead of straying to hot button conflict issues not important to the matter or matters to be resolved at during the mediation.

        A mediator can NOT force you to accept any proposal, or to change any position, or even to become reasonable.  The mediator has no such power.

        The principal thing a mediator does in custody cases is to keep the parties on task, dealing with questions directly concerning the care of the child or children instead of wallowing in grievances that might have built up over the years and which have led to the divorce, but which have little to nothing to do with child care.

        Anyone can serve as a mediator... if you both agree, and if the person you agree to serve as a mediator agrees to do it for free, or for next to nothing, then there might be no charge.  Yes, if you can not agree to a person to serve as mediator, the court will appoint someone who has qualified as a mediator under state guidelines, and you will have to pay for the mediation.  The fee will vary according to your income if a mediator is appointed, and you can not be required to take part in more than five hours of mediation -- so if your spouse is refusing to be reasonable, you will not end up financially drained with never-ending mediation fees.  To see the sliding scale of mediation fees, click here to go to Mediation Costs.  But remember that if you and your spouse chose a mediator who does this regularly and who is not a mutual friend doing it as a favor to both of you, the mediator is free to charge whatever fee you might agree to, so make sure you discuss this first.

        Your attorney can attend the mediation, but you need to remember that mediation is not the trial of the case, nor is it a time for each side to discuss the strengths or weaknesses of the case in order to pressure a settlement.  In other words, what you might consider normal "lawyering" skills take a back seat while you work toward agreement instead of trying to overpower each other with your arguments.

        Because open, frank discussion is vital to mediation, things you say in mediation can not be repeated later in court -- you can't be questioned about what you said in mediation in order to show the court you said something different before or to show you had earlier said you would accept a given position.  The mediator is also not allowed to testify regarding what either of you said during the mediation.

        There are also special provisions in the case of abuse or other situations where it would be unreasonable to force someone to even be in the same room with a spouse or former spouse.  These provisions are set out in TCA 36-6-411 in subsection (a).

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