If you are in the middle of a divorce or child custody dispute, it is possible you have been told you need to mediate your case or go to mediation before the final trial. Columbia divorce and family mediation is increasing in popularity and is an alternative to trail. It is the most common form of alternative dispute resolution. Alternative dispute resolution refers to a group of disciplines (including mediation, arbitration, and neutral case evaluation) that have developed to aid litigants in resolving their legal issues prior to trial. A knowledgeable family attorney could help you if you are interested in alternative dispute resolution.
How Does Mediation Operate?
In mediation, a neutral person (the mediator) helps litigants settle their dispute. The mediator is not acting as a decision-maker as a judge would, or an advocate as a lawyer would, but is instead a facilitator. The mediator’s job is to assist negotiations and help the parties reach a settlement to their dispute. A legal dispute is resolved in either a settlement agreement or a litigated trial.
When the dust settles on a hotly contested divorce trial, the lawyers and judge move on to the next case, however, the parents are left to figure out how to co-parent a child after they just spent thousands of dollars tearing each other apart. Trials are not situations that fosters cooperation and accommodation, as anyone who has co-parented can attest.
Mediation is an attempt to resolve any disputes before trial, before whatever bridges might be remaining are forever burned. A qualified attorney in Columbia could guide a separating person through a mediation and help advocate for that person’s best interests. There are five basic steps in mediation: a mediator selection, a preliminary information exchange, introductions and ground rules, proposal exchanges, and resolution.
1. Mediator Selection and Scheduling
It all starts by selecting your mediator. Most attorneys have a short-list of mediators who they have come to trust. The attorneys usually select the one they deem most likely to settle the dispute. Some mediators are better suited to certain types of disputes or personalities of the parties. For instance, a mother who cannot bear the idea of having to spend a night apart from her young child will respond well to a mediator who can show empathy and break through some of those emotional barriers to reach a settlement.
Mediations can be difficult to schedule since there are the calendars of two attorneys, one mediator, and each party to take into account. Because of this, mediators are often selected based on their availability. If the attorneys cannot agree on which mediator to use, the judge will typically make a determination. While not unheard of, the selection of the mediator is usually not a point of contention.
Choosing a Rule 31 Mediator
A “Rule 31 Mediator” is an individual who has met baseline education and training criteria. You do not need to be an attorney to become a Rule 31 Mediator, and the criteria to become one is outlined in Tennessee Supreme Court Rule 31.
In 1992, the Tennessee Supreme Court created a commission to investigate alternative dispute resolution in the state “with a view toward the use and implementation of procedures to expedite and enhance the efforts of the courts to secure the just, speedy, and inexpensive determination of disputes.” From the start, the commission was investigating ways to achieve resolutions to disputes outside of the traditional methods that were fast and affordable.
The recommendations of the commission lead to the enactment of Tennessee Supreme Court Rule 31. This rule created a uniform process for referring cases to mediation as well as training and credentialing mediators. The mediator requirements of Rule 31 are what the Tennessee Alternative Dispute Resolution Commission has determined are the minimum qualifications that an individual possess to be a quality mediator.
If looking for a qualified mediator to help you resolve your divorce or custody matter, determining if they are Rule 31 certified needs to be where your search begins. Good follow-up questions to ask are:
- How many mediations have you conducted in the last year?
- What was the percentage of your mediations that settled?
- Do you keep parties separated or do you believe in putting them in the same room?
- How do you charge and what forms of payment do you accept?
- Are you trained to mediate family law disputes where there has been domestic violence?
If the mediator you are looking to hire does not have good answers to these questions, it would be best to search somewhere else for a trusted mediator. A qualified attorney in Columbia could help someone retain an experienced person to mediate their family or divorce case.
2. Preliminary Information Exchange
Once selected, the mediator will typically send out an engagement letter confirming the day and time of the mediation as well as other housekeeping matters. Most mediators request a “mediation statement” from each side. These statements are confidential statements submitted to the mediator prior to the mediation. This gives the mediator a chance to review the facts of the case ahead of time and hit the ground running when the mediation starts. These statements are particularly valuable when a case is complex or unique in some way.
A good mediation statement will not only describe the facts at issue but also the personalities involved. It is valuable for a mediator to know on the front end if a person is unreasonably difficult or has some other personality trait that will impact reaching an agreement.
Not every attorney provides a mediation statement. Some attorneys feel that they are saving their clients money by not taking the time to draft a statement. Most mediators, though, will tell you that any time spent in preparing a mediation statement is recouped by shortening the time of the actual mediation. Often, in more standard cases, the purpose of a mediation statement can be achieved by a simple phone call between the mediator and dedicated Columbia attorney.
3. Introductions and Ground Rules
At the beginning of mediation, the mediator will introduce himself and make sure each party has a solid understanding of the purpose and process. The mediator will clarify their role as a neutral facilitator and emphasize the confidentiality of the process.
The law wants people to settle their cases, and it helps keep court schedules manageable and is generally better for everyone involved. Because of this desire, the rules establishing the mediation process in the area call for it to be a confidential process.
The mediator is a secret-keeper and will not say anything to one side that the other side does not intend for them to know. In this way, parties should be at ease to freely discuss things with their attorneys and not worry about the mediator gleaning some weakness in their case and betraying that trust
The second way that it is confidential is that, if the dispute does no settle and advances to a contested hearing in court, neither party can reference what was proposed or said in mediation. The mediator cannot be called to be a witness, and the judge will never know what was offered.
What this confidentiality means is that nothing a person does in mediation can hurt them in anyway. If an agreement is reached, it will be one that the person in the dispute participated in the development of, reviewed with their attorney, and signed their name to it. If there is no settlement, then the parties are free to seek whatever relief in court they choose; they are not restrained by any offer proposed during mediation.
Who Can Attend Mediation?
Often the mediator will need to clarify who can be present. By default, only the named parties of the legal action and their attorneys may be present during a Columbia family or divorce mediation. Some mediators are willing to allow additional individuals to be present, but will only do so if everyone is in agreement for this to happen.
There are two main reasons why additional people are generally not allowed to participate. First, mediation is a confidential process and it is no one else’s business what people going through a divorce or child custody dispute are discussing. Second, the involvement of other people almost always works against a settlement. At the end of the day, the parties of the litigation are the ones who have to live with their decisions and unsolicited advice should not be welcome.
In mediations where one of the parents does not speak English, there is a need for an interpreter to be present. With enough notice, this is simple to set up and is never objected to. Our attorneys have mediated several cases where an interpreter is needed. As an extra service to our non-English speaking clients, we have their final documents professionally translated into their preferred language. This is particularly helpful if several years have passed since the resolution of the case and the clients need to clarify their understanding on a certain aspect of their paperwork. The client can immediately refer to the necessary document to gain the answer they need.
Many times young, new parents want to bring their own parents to mediation to act as moral support. It is understandable why a new parent would desire the input of his or her own parents. After all, the new parent could still be living with their own parents and be financially dependent on them. In situations like these, it is even common for these grandparents to be the ones paying for the attorney and mediator. These grandparents are occasionally allowed to participate, so long as they are supporting their child and encouraging them to make their own decisions. For this to be successful, the grandparent must not attempt to substitute their own ideas with those of the parents.
“New” Significant Others
Sometimes in a divorce or custody mediation a person wants to have their current significant other with them. This additional person could be a spouse or a boyfriend or girlfriend. The attendance of this type of third party is almost never allowed. Inevitably, the presence of that third party is enough to dash the hopes of reaching an agreement as tensions are simply too high to focus on making forward progress and instead tend to concentrate on past misdeeds.
It is somewhat understandable why someone going through this type of legal action would want their current significant other present to assist them in developing a parenting plan that works for their home life. After all, it makes sense that, before agreeing to a major custody modification, a litigant would want to vet the wisdom of such an important decision with the person closest to them.
The mediator’s job is to ensure a fair process. If at any time the mediator believes a third party is inhibiting settlement, the mediator has the authority to remove them.
Joint Sessions Versus Private Caucus Debate
Every mediator handles things differently, however, the vast majority of divorce and family mediations in Columbia are conducted with the parties and their attorneys in separate rooms. Whether or not litigants should be placed in the same room is perhaps the most hotly discussed topic when mediators get together.
The Joint Session
Many mediators feel that mediations should start with everyone in the same room, known as the joint session. In these types of mediations, the introductory remarks are given by the mediator while everyone is gathered in the same room. Then, the mediator will ask each side to present opening remarks concerning their views of the case. As discussed, mediation is not a court proceeding; as such these remarks should not attempt to be persuasive, but to succinctly outline the position of each side and the general outcome they are seeking.
After these opening remarks, the mediator will begin gathering information. He might ask what the most recent proposal was and then request that the party receiving that proposal respond to it. In this way the initial back and forth of mediation takes place while everyone is together. Parties typically do not separate until one of them requests it or the mediator feels it is necessary to discuss things privately.
Mediators who rely heavily on the joint session tend to take more facilitative approach. This means that they attempt to resolve disputes by focusing more on the feelings of the parties rather than the legal merits of their case. Facilitative mediations are usually more therapeutic in nature.
Private Caucus and Separated Mediations
This is the most common form of family law mediation in the area. In these private mediations, the parties are kept separated during the entire process. Each side stays in their own room and the mediator walks back and forth to discuss the various issues with each side privately. While nothing is off the table, it is very rare for the parties to ever see each other in these types of proceedings. If the dispute involves domestic abuse, the parties will always be kept apart.
Not much is different in the process between joint and private mediations, however, private ones tend to be much more relaxed and less formal since the parties do not need to posture for the benefit of the opposing side.
Every mediation is different and, like anything, there are pros and cons to each style. Ultimately, the attorneys who practice family law in Tennessee and the parties themselves seem to vastly prefer separated mediation and that is almost certainly the type you will encounter if you are mediating a divorce or child custody dispute in Columbia.
4. Proposal Exchanges
After all the housekeeping and opening remarks are completed, it is time for the heart of mediation to begin. Typically, the mediator will start with the plaintiff, who initiated the action, and begin asking questions to determine their position on the various issues.
Eventually, the mediator will elicit a proposal from the plaintiff and carry that proposal over to the defendant. Depending on the complexity and amount of the issues needing to be resolved, the mediator may take them individually, obtaining resolutions one at a time before moving on to other issues. Often, however, it is wise to take on one of the more important issues first as it is not worth wasting too much time resolving minor issues when there will not be an agreement on the major ones.
The mediator will take the plaintiff’s proposal to the defendant and convey it to them. They will then start discussing the defendant’s views on that proposal and whether they will accept or offer a counter-proposal. This process is essentially repeated until there is an agreement on all the issues.
What Skills are Necessary to be a Good Mediator?
A good mediator needs to have some degree of subject-matter expertise on the type of dispute he is mediating. A substantial part of the mediation process are the discussions concerning what is likely to happen if the case is not resolved and has to go to court. Because of this, even the most skilled therapist or counselor would be hard-pressed to resolve a family law dispute if they did not have a working understanding of the underlying law.
Equally important to knowledge on the law of the dispute, a good mediator must possess a wide-range of soft skills. The most knowledgeable and skilled divorce attorney may be a terrible mediator. The same skills that make a good litigator are vastly different from the skills that make a good mediator. This is not to imply that good lawyers cannot be good mediators and vice versa (indeed there are many excellent attorney-mediators out there), but the two roles rely on different skill-sets.
Of paramount importance, a good mediator must be empathetic. The mediator, in an incredibly short time, must be able to connect with people they are working with. Not every person needs the same kind of treatment from the mediator. Some people need a mediator who will hold their hand and guide them through the resolution; other people, believe it or not, need a mediator who will tell them that they are a jerk and suggest that they settle their dispute before a judge sees just how big of a jerk they are and throws the book at them. A good mediator has the ability to change their demeanor in the time it takes to get from one room to the other.
A good mediator must also be patient. Although an experienced mediator might have dealt with near identical disputes hundreds of times, for the people at that mediation their matter is the most important thing in their world. It is intensely personal and novel to them. They need time to vent, process, and, ultimately, find peace with final outcome. Even though a mediator might know exactly how a mediation will be resolved, the mediator cannot simply “skip to the end” and throw out the ultimate resolution as the parties simply are not ready to hear it and probably will not agree to it.
Active listening is also a key attribute of a successful mediator. The ability to pay close attention to what parties are saying (or perhaps what they are not saying) goes a long way to steering the discussion towards resolution.
Through patience, empathy, and active listening, the mediator will build trust with each side to help them buy into the process and prime them for a settlement. An accomplished attorney in Columbia could help someone find a skilled mediator with all of the qualities listed above.
5. Resolution or Impasse
Eventually, after several rounds of negotiations, one side will make a “final offer.” In doing this, they are saying “agree to this or we will see you in court.” While there is nothing legally binding about the phrase “final offer” and you sometimes see a party bluffing; generally speaking, a final offer is truly the last offer.
If the offer is accepted, an agreement has been reached and, depending on the time of day, the attorneys will either draft the final paperwork or draft a “Memorandum of Understanding.” A Memorandum of Understanding is a loose outline of the agreed-upon terms that each party signs. It is meant to be a legally binding placeholder agreement until there is time to draft the actual legal documents that resolve the dispute.
Generally, if an agreement is not reached on every issue, the entire dispute is considered unresolved and it will escalate to the next form of dispute resolution, which may be a trial. However, if the parties have reached an agreement on one or more issues, they may elect to bind themselves to those agreements and go to trial on the unresolved issues only.
It is fairly common for a mediation to conclude without an agreement, then for one of the parties to sleep on things for a day or two and ultimately agree to the last offer that was on the table. Keep in mind, however, that parties are not required to keep offers open once the process has ended. No matter how a mediation ends, a diligent Columbia attorney could guide someone through the next steps of their divorce or family matter.
Is a Lawyer Needed for Mediation in Columbia?
Just like every other aspect of a divorce or child custody dispute, you do not need a lawyer to represent you; however, having one brings with it obvious benefits. Having a lawyer is the only way to ensure that your rights are being protected.
Once again, it is important to clarify the mediator’s role: they are required to insure a fair process, but not necessarily a fair result. A mediator will not prevent a party from agreeing to something stupid; in fact, a mediator will not even notify the person that they are contemplating agreeing to something stupid. The mediator’s job is to fairly facilitate the resolution of a dispute, not to protect someone from agreeing to (or refusing to agree to) something that will harm / help them.
In most mediations, both sides are represented. It is also common for both sides to be unrepresented. In these situations, neither side is in a position to afford an attorney, but they still need the assistance of a mediator to reach an agreement. In both of these instances there is an essentially equal balance of power and neither side should feel inferior.
Finally, it is also common for one party to have a skilled Columbia attorney and the other one not to in a mediation, however, the unrepresented person needs to be very cautious. They are at a disadvantage and, while they do not need to fear being embarrassed or intimidated to the extent they would if they were going to court, a mediator will not protect them.
Occasionally, a person who has retained a lawyer to represent them during the divorce will attend mediation without their lawyer in an effort to save money. Usually the attorney is on “standby” and available via phone in case an agreement is reached and it’s time to review a drafted document. While this may seem like the best of both worlds, it is best not to be penny wise and pound foolish. Simply put, if you can afford to hire an attorney, you can afford for that attorney to represent you during mediation.
In short, like with every aspect of Columbia family law, if you want to ensure that you have an advocate in your corner who will advise you and represent your interests, hire a local lawyer familiar with local divorce and custody law.
How Much Does Divorce Mediation Cost?
As with all things, price is often a consideration. One of the great advantages to mediation is that it has the potential to save you a lot of money. However, this is not to imply that it is an inexpensive process.
Typically, a mediator will charge an hourly rate that is equally split by each side. It is also common for mediators to charge a minimum fee, generally three or four hours of time. This represents the cost of blocking off a significant portion of their day when they could be working on other paying matters. Some mediators charge in half-day and full-day increments.
Most mediators in the area charge between $200 and $350 an hour. Therefore, if a mediator charges $200 per hour and the mediation lasts four hours, each side will pay $400.
Keep in mind that the attorneys representing their clients are also billing time. In total, a participant is generally paying the hourly rate for their attorney and 50 percent of the mediator’s hourly rate. If there is a large disparity between incomes, it is not uncommon for the financially superior party to pay the entire cost of mediation.
While this may seem like a staggering amount of money for someone who cannot afford an attorney or who can barely afford the one they have, the hope is that in one day a dispute can be resolved that would otherwise take tens of hours litigating through trial.
Those needing mediation services in the Columbia area are particularly lucky to have a nonprofit organization known as The Mediation Center available. The Mediation Center is a community dispute resolution center. Its fees are based on a sliding scale determined by each party’s income. These fees are significantly lower than what a private mediator would charge.
The Nashville Conflict Resolution Center in Nashville and Community Resolution Center in Knoxville are other great nonprofit dispute resolution centers that can help resolve disputes at affordable rates.
Is Mediation Required in a Columbia Divorce?
In the state, parties in a divorce or child custody dispute are required to attempt mediation before proceeding with a trial. The court shall order the parties to participate in mediation unless one of the listed exceptions applies. Typical exceptions are that either party is unable to afford the cost or the court determines that the mediation is substantially likely to result in impasse.
It would be very unusual for a court to waive the mediation requirement absent some notable extenuating circumstances. One big exception to the mediation requirement is when there has been domestic violence. In these instances, mediation will only be required if the victim chooses to engage in it, and only then, if it is conducted by a mediator specially trained in domestic and family violence.
What are the Advantages of Mediation?
Divorce and family mediation in Columbia has the potential to make every aspect of a difficult process better. The chief complaints of people going through a divorce are the cost, time it takes, and emotional toil. These factors are generally all related to one another. The longer a family law dispute takes, the more money it costs and the more of an emotional burden it becomes.
A divorce, from the time of filing the initial document to the final hearing, can easily take over a year to resolve. In comparison, some mediations can be conducted before any discovery or contested hearing occurs. This will, undoubtedly, save the parties thousands of dollars in legal fees.
Even when a mediation must take place well into the divorce process and after the parties have already spent a substantial amount of money, there is a likelihood for a significant savings. With rare exception, the most costly period of any litigation is preparation for and participation in trial. Being able to avoid that aspect of a family law dispute will greatly reduce the cost.
Resolving disputes faster also reduces the stress and emotional struggle that comes with being in the middle of contested litigation; especially contested litigation over something as important as your children, retirement, and property.
Another benefit of mediation is its privacy. Some may not be aware, but divorce and other custody proceedings in the state are public record. Anyone can go into the local court clerk’s office and read through every document that has been filed in your case. Occasionally, to protect the innocence of a minor child, a court may order that certain items be sealed, but this is an exception to the rule. Most documents, no matter how embarrassing or hurtful, are available to the general public. An early resolution to a case may preempt the filing of certain documents and keep the information and allegations private.
What are the Disadvantages of Mediation?
There are few disadvantages of family or divorce mediation. The cost has already been addressed. If a case does not settle, then the money spent could be considered “wasted.” That said, around 80 percent of cases settle on the day of mediation and another ten percent settle shortly thereafter, based on the progress that was made. Therefore, for the vast majority of cases, mediation saves time and money rather that wastes it.
What are Parks, Bryant & Snyder’s Views on Mediation?
As dedicated attorneys in Columbia, we take mediation seriously and prepare our cases and clients for them. We prepare thorough mediation statements and provide them to mediators in advance so they have enough time to properly review them. We treat this seriously and that greatly increases the likelihood of reaching a settlement in mediation that is favorable to our clients; thereby saving them time and money.
Shawn Snyder is our firm’s mediator and he can help you or your client’s divorce. He is a Rule 31 General Civil Mediator. He has also been specially trained in mediating domestic violence issues in divorce or other family law matters.
Shawn has always enjoyed helping people resolve their complex legal and emotional disputes. While in law school, Shawn took multiple classes in mediation and other alternative dispute resolution courses. He earned the highest grade in Arbitration Law in his entire class.
Before beginning his law practice in the state, Shawn served as the Executive Director of The Mediation Center in Columbia. In this capacity, he was primarily responsible for spearheading several programs that provided low income litigants with access to quality alternative dispute resolution services.
Shawn has successfully mediated hundreds of family law cases and it is rare for a week to go by where he is not sitting at a mediation table helping someone settle their divorce or child custody matter. In 2018, he mediated 45 cases with a settlement rate of over 90 percent.
Shawn typically mediates at our offices in Columbia. However, he is willing to travel to offices throughout the middle of the state including: Franklin, Nashville, Murfreesboro, Pulaski, Lawrenceburg, Hohenwald, and Lewisburg. Contact us if you would like for Shawn Snyder to mediate your Columbia divorce and family mediation.