Are There Court-Mandated Mediation Sessions in Tennessee?

Reviewed by Elizabeth Fendley Birch

Key Takeaways

• Mediation is mandatory in a Tennessee divorce, not optional.
• Statutory exceptions can waive it, including cost.
• Confidentiality is statutory, with only five exceptions.

You may have had difficulty seeing eye-to-eye with your spouse when you were married. Therefore, you may have reason to believe that negotiating a divorce settlement agreement via mediation may not be in the cards. Rather, you may want to skip to your litigated divorce proceedings and put this behind you as soon as possible. But you may be surprised to learn that the Tennessee family court may expect mediation from you and your spouse. Read on to discover whether mediation sessions are court-mandated in the state of Tennessee and how one of the seasoned Clarksville divorce lawyers at Fendley and Birch can help you get through this step.

Are There Court-Ordered Mediation Sessions in Tennessee Divorces?

Yes, in accordance with TN Code § 36-4-131(a), any divorce or separate maintenance proceeding will result in the court ordering the parties to participate in mediation, unless there is an applicable statutory exception. Mediation is the default during a Tennessee divorce, rather than something the judge will implement in a difficult case. Additionally, sharing children is not a requirement, as the statute is applicable to any divorce or separate maintenance proceeding, regardless of whether or not minor children are involved.

The goal is to settle contested divorce-related issues (i.e., alimony, child support, child custody, and property division) with the guidance of a court-ordered mediator. But if still not possible, then litigated court proceedings may commence.

When the Court Will Not Require Mediation

The exceptions to mediation are included in § 36-4-131(b), which allows the court to waive or extend mediation when:

• Either party cannot afford mediation expenses, unless the cost is waived or subsidized, or the cost would place unreasonable hardship on either or both parties
• The parties have already signed a written marital dissolution agreement or have agreed to an order resolving all outstanding issues
• The parties have already participated in a settlement conference facilitated by the court or a special master
• The court has substantial reason to believe mediation would end in an impasse
• Any other cause the court deems relevant

There are two additional provisions that can impact these matters. Under § 36-4-131(c), when the ground cited is irreconcilable differences, and the parties have already filed a properly executed marital dissolution agreement plus a valid parenting plan if minor children are involved, the court will not require mediation.

Next, in accordance with § 36-4-131(d), if domestic violence findings or an order of protection is involved, the court may order mediation only if the victim agrees. If this is the case, the mediator must be certified and specially trained in domestic violence, and the victim is permitted to have a support person present.

What Are the Pros and Cons of These Mediation Sessions?

You may initially think attending mediation sessions is a significant waste of time. But it is arguably almost worth giving it a shot. In fact, alternative dispute resolutions like mediation are oftentimes preferred by divorcing couples in the state of Tennessee. This is all to say that it is up to you and your spouse to determine whether the pros outweigh its cons, and therefore whether you want to put in the effort to make this work. Namely, the most notable pros and cons are as follows:

• Notable pros of court-ordered mediation sessions:
  • You and your spouse may save time and money in what is known to be the extensive and expensive litigated divorce process.
  • You and your spouse may learn pivotal communication and negotiation skills needed to eventually co-parent your shared children.
  • You and your spouse may maintain control over your divorce settlement agreement all while keeping it private from the public eye.
• Notable cons of court-ordered mediation sessions:
  • You and your spouse may have unresolved power dynamics or other issues that may be forced to the forefront of your sessions.
  • You and your spouse may still be reeling from your decision to part ways and be unwilling to enter forced communications.
  • You and your spouse may still be unsuccessful at resolving your issues and only just delay the finalization of your divorce.

What Is Asset Division in Tennessee Divorce Mediation?

When going through a divorce, asset division is typically the most complicated matter to settle, but mediation helps provide you with additional control over the outcome, rather than relying on a judge to apply statutory standards.

Factors to Weigh When Dividing Assets

After a long marriage or in instances where the marital estate is considerable, dividing assets is rarely as simple as taking turns choosing what each spouse wants. Instead, you should consider the following:

• The financial contributions of each spouse towards obtaining or maintaining a particular marital asset
• The anticipated financial standing of each spouse after the divorce is finalized
• The tax implications of retaining an asset and whether either spouse is financially equipped for these implications
• The custody arrangement you have settled and if a certain asset should remain accessible to the child

These factors are most influential when the marital assets are considerable, like real estate, retirement accounts, businesses, or investment portfolios.

How Is the Marital Home Typically Handled During Mediation?

Generally, the marital home is the most considerable asset at play, and it is rarely practical for a divorcing couple to continue sharing it. As such, it’s critical to remain objective about whether or not you should try to keep this asset, as unfortunately, many spouses are clouded by sentimentality, which can have a lasting financial impact post-divorce.

Common Options for the Marital Home

• Selling the home and dividing the proceeds between the spouses
• One spouse buying out the other spouse’s share of the home and keeping the property
• Implementing a “nesting” arrangement in which the spouses continue joint ownership and take turns staying in the home with the children
• Keeping the home in both spouses’ names until the children finish school or move out

Key Considerations Before You Decide

• Mortgage lenders do not have to abide by your divorce agreement, which may have an impact on your ability to refinance the home
• The divorce agreement should explicitly detail responsibility for mortgage payments, homeowner’s insurance, taxes, and general maintenance
• If the mortgage is viable on a single income
• The impact of the decision on the stability and continued education for your children

Changing Your Mind After the Agreement Is Signed

Once your marital settlement agreement is approved by the family court and implemented as part of your final divorce decree, it becomes legally binding. As such, it is incredibly difficult to reopen property division considerations, especially if this is solely based on regret.

Courts will consider challenges if there is evidence that your spouse committed fraud, hid assets, or coerced you into signing. That is why ensuring you have an attorney review the agreement before signing is critical, as they can help ensure that your best interests are reflected.

Is Everything Covered in Mediation Discussion Supposed to be Kept Confidential?

Under TN Code § 36-4-130(a), confidentiality is statutory. The mediator in a divorce must not divulge information disclosed by the parties or others during mediation, and all records, including reports and documents developed for mediation, are privileged. Additionally, under TN Code § 36-4-130(c), the mediator cannot be compelled to testify in any proceeding unless all parties and the mediator agree, in writing.

The statute also lists the only five circumstances under which information from mediation may be disclosed:

• All parties agree in writing to waive confidentiality
• A later action between the mediator and a party for damages arising out of the mediation
• Evidence that was otherwise subject to discovery and was not prepared specifically for use in the mediation
• Litigation with a third party, where the court decides fairness to that third party requires disclosing the fact or substance of a mediated agreement
• Disclosure that reveals abuse or neglect of a child by one of the parties

Note what is absent. Confessing to a crime unrelated to child abuse or neglect is not a statutory exception, and neither is a claim that one spouse was coerced into attending.

Why Would My Spouse Deny My Suggestion of Divorce Mediation?

Refusal may stem from heightened emotions, especially if your spouse is upset that you initiated the divorce or is nervous to sit across from you. However, it may also be strategic, as they may prefer to have a judge apply equitable distribution and best-interest standards, rather than trusting their own negotiations.

Either way, your spouse’s refusal does not settle the question, because mediation in a Tennessee divorce is not something the two of you opt into. Under § 36-4-131(a), the court is required to order it unless a statutory exception applies, so an unwilling spouse will generally end up at the table regardless. What you cannot do is pressure or coerce them into it yourself. You do not need to, and the attempt is far more likely to damage your standing with the judge than to speed anything up.

Contact an Experienced Tennessee Family Law Firm Today

If the cons of court-ordered mediation are too consequential in your eyes, you may want to file a petition with the Tennessee family court to be released from this order. In conclusion, the time to act is now. Please pick up the phone and contact one of the competent Clarksville family lawyers from Fendley & Birch. We look forward to hearing from you.