Discovery and Mediation in a Tennessee Divorce

From The Mid-South Divorce Guide, chapters 9 through 10, by
William W. Jones IV, a Memphis family law attorney and Rule 31 Listed
Family Mediator licensed in Tennessee and Mississippi. This guide covers
Shelby, Tipton and Fayette Counties in Tennessee and DeSoto, Tate and
Tunica Counties in Mississippi.

Questions this page answers

• What is discovery in a divorce?
• What happens at divorce mediation?
• Is mediation required in Tennessee divorce?
• Do I have to be in the same room as my spouse at mediation?

Discovery

Discovery is the
formal exchange of information. It is where cases are actually won and
lost, and it is where most of your money goes.

The tools

Interrogatories are written questions the other side
must answer under oath. Where do you work, what do you earn, list every
account, identify every witness.

Requests for production demand documents. Tax
returns, statements, texts, photos, records.

Requests for admission ask the other side to admit
or deny specific facts, which narrows what has to be proven at
trial.

Subpoenas go to third parties. Banks, employers,
schools, phone companies. If your spouse will not give it to us, we go
get it from the source.

Depositions are sworn testimony in a conference room
with a court reporter. See Chapter 11.

Your job in discovery

Answer honestly and completely. All of it.

This is not Who Wants to Be a Millionaire. There is no fifty-fifty,
there is no phone a friend, and there is no walking away with what you
have already banked. You do not get a lifeline. You get one set of sworn
answers with your name on them, and you live with those answers for the
rest of the case.

I mean this as strategy, not as a lecture. A bad fact that comes out
in your own discovery response is a bad fact. The same fact discovered
later, after you failed to disclose it, is a lie, and a lie is a much
bigger problem than the fact ever was. I would rather know about the
girlfriend, the second account, and the gambling on day one and build a
case around it than find out about it from opposing counsel in a
deposition.

Be thorough the first time. Going back to gather documents three
separate times costs you three times.

Be timely. Discovery has deadlines, and missing them can mean a motion to compel, which
means fees, and can in extreme cases mean the court prohibiting you from
using evidence at trial.

And do not destroy anything. Not the texts, not the emails, not the
photos, not the social media posts, not the accounts. The automatic
injunction prohibits it, and spoliation of evidence
lets a judge assume the missing thing was bad for you.

Managing the cost

Discovery is where the bill grows fastest, so make deliberate
choices.

Ask your lawyer what a given discovery step is going to cost and what
it is likely to produce. Sometimes a two thousand dollar subpoena is the
thing that wins the case. Sometimes it confirms something we already
knew. Your lawyer should be able to tell you which one it is.

Organize your own documents before you hand them over. Every hour a
paralegal spends sorting your shoebox is an hour on your bill. Scan
things. Label them. There is a checklist at the back.

Mediation

Tennessee courts order mediation in contested
divorces. Tennessee Code Annotated section 36-4-131 directs it, subject
to some exceptions, and Tennessee Supreme Court Rule 31 governs who is
qualified to do it. A Rule
31 Listed Family Mediator has completed the Supreme Court’s family
mediation training and is listed by the Administrative Office of the
Courts to mediate custody and divorce cases.

I am one. That means I sit as a neutral in other people’s cases, and
it also means I know what happens on the other side of that door.

What mediation actually is

A neutral third party helps you and your spouse try to settle. The
mediator does not decide anything. The mediator has no power to order
either of you to do a single thing.

In the mediations I attend and conduct, the parties are in separate
rooms the entire time. You and your lawyer in one, your spouse and their
lawyer in another, and the mediator walks back and forth. You may never
see your spouse all day. That is normal and it is by design.

What it is like

It is long. Plan on most of a day. Bring food, a phone charger, and
patience.

It is slow on purpose. The first few exchanges will feel like nothing
is happening. Something is happening. Both sides are testing the shape
of the room.

It is exhausting. Around hour six, when you are tired and hungry and
just want to go home, you will be asked to make a significant decision.
This is exactly why you did the work in Chapter 2 and already know
what matters most to you. Decide when you are fresh. Execute when you
are tired.

Why it usually works

A settlement you build is a settlement you can live with. A judge’s
ruling is somebody else’s idea of your life, imposed on you, and both of
you are usually a little unhappy with it.

You also control the outcome. A judge is limited to what the law
allows. You and your spouse can agree to things a court could never
order. Creative parenting schedules, unusual property trades, a college
funding arrangement. The room is bigger than the courtroom.

And it is cheaper. Vastly cheaper.

Confidentiality

What is said in mediation is confidential. Offers made there
generally cannot be used against you later. What gets reported to the
court is whether you attended and whether you settled. This is what
makes real negotiation possible, because both sides can float ideas
without those ideas becoming evidence.

The domestic violence
exception

If there has been domestic or family violence, or there is an order
of protection, mediation is handled differently under section 36-4-131.
It can proceed only if the victim agrees to mediate, the mediator is
certified or trained in domestic and family violence, and the victim can
bring a support person of their own choosing. Courts can also waive
mediation entirely.

If this applies to you, tell your lawyer before mediation is
scheduled, not after.

If it does not settle

That is not a failure. Some cases mediate twice. Some cases settle
two weeks later because mediation moved both sides closer without
closing the gap. And some issues settle while others go to trial, which
narrows the case and saves you money even without a full resolution.

Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)

Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.