Frequently Asked Questions About Mediation:

What is mediation and how does a session proceed?

Mediation is a voluntary, consensual process that uses a trained, neutral third party to facilitate the negotiation of disputes with the goal of reaching a binding settlement agreement. 

The mediator does not solve the problem or  provide the solution.  The job of the mediator is to create an atmosphere where the parties can work together creatively. The most important job of the mediator is to listen.  Often, the observing non-speaking party sees reality through the eyes of the mediator as they watch the mediator listen to the other parties.   When people begin to feel safe and understood, they often drop their defenses and begin to explore creative options that they never considered before.  As these options emerge from their creative imagination, the process becomes a collaborative one and the parties begin to work together.  Solutions emerge and conflicts are resolved. 

In some mediations the parties are situated in separate rooms, called caucuses. The mediator goes back and forth between the parties, where the mediator learns confidential information and carries proposals between the parties.  In other mediations the parties begin sitting across the table from one another and then later, if necessary, break into caucuses in separate rooms.  The caucus usually includes the party, the party’s lawyer and the mediator.  The mediator caucuses with both parties, separately.

At the end of the mediation if the conflict is resolved (and usually the conflict is resolved), the attorneys work together to draft an agreement before the mediation is over.  Usually all parties sign the agreement before leaving the mediation.  In the event that an agreement is not reached and more information is needed, the mediator will often schedule another meeting or deadline to provide other information and then talk to the parties by telephone in attempt to resolve the final details. 

What cases are amenable to mediation?

Almost any case, civil or family, is amenable to mediation.  With the exception of cases where the parties are attempting to make new law or cases in which there is no precedent, the ability to tap into the creativity of multiple persons is more satisfactory to the parties involved, rather than finding one answer from a judge or jury.  It often means that in cases where it is important to preserve the relationship of the parties, such as family cases, construction cases, employment cases, that relationship is strengthened, rather than severed by a court decision.

What are the benefits of mediation?

It is a voluntary process.  Parties are free to leave at any time.

It is a confidential process.  The only public record is an order which states that the parties have settled the case.

It is usually less expensive and time consuming than a trial in court.  Most mediations range from four hours to a day.  In family cases, there may be several sessions over several days or with periods of time in between. 

The parties retain control of the outcome.

The parties are more satisfied with the outcome.  If the parties are able to settle, the outcome is final with no appeals, and immediate.  If the parties do not settle on the day of the mediation, the issues are narrowed and likely the case will settle before trial.

If the settlement involves money, parties are more likely to comply with an agreement they helped forge.

How do you schedule a mediation?

Usually mediations are scheduled by agreement of the parties or by court referral.  In any event one or both parties call The Mediation Group of Tennessee Office and speak with a case manager.  The phone number is (615) 292-6069 or Toll Free  (877) 298-8648.

If you are requesting a specific mediator, the case manager will check to see if the parties'schedule and the mediator's schedule are compatible.  If you have no preference, the case manager will steer you to several possibilities based on experience, training, subject matter expertise and availability.  The resumes are available on the Panel of Professionals on this website.

The case manager will obtain information that is necessary to scheduethe mediation.  If only one party is on the phone, several calls may be necessary to set a date and time convenient for all parties and the mediator.

After the necessary information is received and the mediation is scheduled, the case manager will send out a confirmation letter giving details regarding the date and location of the mediation and notifying the parties of a Pre-Mediation Conference.  The Pre-Mediation Conference Call is set up a week or so prior to the mediation to ensure all logistical details are in place and to give the mediator an opportunity to learn something about the case and ensure that all necessary documents and parties are present.

The case manager will also send an Agreement to Mediate to the attorneys or to the parties, if unrepresented.  This document outlines the responsibilities of the mediator and the parties, as well as the hourly rate of the mediator and responsibility for payment.  All parties and attorneys must sign this agreement prior to the start of the mediation.  An Agreement to Mediate may be printed out by clicking here. Agreement to Mediate.doc

What is the role of the mediator?

The mediator is a neutral party who helps the parties negotiate a durable settlement or narrow the issues of the dispute.  The mediator does not offer legal advice.  He/she does not make any decisions for the parties.  Although she may at the request of the parties help them look at options or suggest options to them, only the parties control the final outcome.  The mediator is to assist the parties to discuss the conflict and hopefully reach consensus.  All parties should seek to have their settlement reviewed by an independent attorney if their attorney is not present at the mediation.  The mediator may become the scrivener of the parties' settlement, but he/she is only writing what the parties authorize as their agrement. 

What happens if the conflict is not settled on the day of the mediation?

The vast majority of cases settle on the day of the mediation.  Other cases are scheduled for successive days or for several hours at a time at several sessions.  Usually if the mediation does not fit into the schedule of the parties or mediator, the parties and mediator will rescedule for another day and time.  Sometimes parties will need additional information before they can negotiate further.  The mediator and the parties will determine what information is necessary before reconvening.  In any event the mediator will follow up with the parties after the mediation to see if there exist further possibilities for settlement.  Unless the parties eventually settle the case, there is no charge by the mediator for follow-up telephone calls. 

How does the Mediation Agreement become final?

If the parties have reached a settlement and attorneys are present, the attorneys, along with the parties, will execute an Order or Memorandum of Understanding.  When it is signed by all parties, this document becomes a contract and may be enforced as any other contract.  Once the Order or Memorandum of Understanding has been signed, the case is over and the judgment is final.  If the case involves payment by one party, the the other party will have to sign releases, etc. prior to receiving any payments.  

If the Memorandum of Understanding is between divorcing parties, the attorneys for the parties will have to draft a Marital Dissolution Agreement and Parenting Plan, if there are children.  A judge must then approve the two documents before the divorce can become final.

If there are no attorneys present at the mediation, the mediator will instruct one party to take the Memorandum of Understanding to an attorney to prepare a complaint, a Marital Dissolution Agreement and Final Decree.  The other party may take the finished documents to his/her separate attorney for final approval, if desired.  One attorney will accompany his/her client to court for approval of the final documents.

Where does the mediation or arbitration take place and what amenties are provided?  

For most civil mediations, we prefer to make “house calls,” in a setting determined by the parties.  Usually the mediation or arbitration takes place at one or the other attorney’s offices.  If that is not possible or convenient, particularly when parties are geographically distant, The Mediation Group will arrange for space at the parties’ expense.  The conference room and offices at the offices of The Mediation Group can be used depending on availability.  It is important that everyone be comfortable and that there be food and drink available.  The Mediation Group will be happy to provide these resources if they are not readily available at the host office.