by attorney Tammy Oliver with Moskovitz, McGhee, Brown, Cohen & Moore
With the unprecedented challenges suddenly hurled upon each and every one of us by the COVID-19 pandemic, both the concepts of self-preservation and the preservation of others are in the forefront of daily news, conversation, actions, and thoughts. Oddly enough, preserving oneself and preserving others are uniquely intertwined, working in tandem, such that one will not produce the desired results without the other. By way of illustration, for social distancing, safer-at-home and stay-at-home orders to be effective, one must preserve oneself, i.e. stay inside, isolate, restrict movement. In this case, self-preservation promotes the preservation of others. This is a remarkable time for humanity to witness the balance of serving self and serving others for the benefit of everyone. I began writing this just before the explosion of COVID-19, but quickly realized that this phenomenon creates a perfect analogy for a successful mediation and other similar events.
Marriages do not (ideally) begin with the parties focused on oneself, but rather on the other person, the team, and the creation of a family. However, for a marriage to thrive, there must be a balance. A person cannot, or should not, be solely dependent on another person to be happy. Rather, each person must be proactive in feeding his/her own soul while nourishing the partner and the marriage. Of course, the balance will ebb and flow over time, but ultimately a healthy marriage provides an environment of consideration, thoughtfulness, and respect. This can be a difficult but achievable balance, much like the one we are experiencing right now as a global community. Unfortunately, this balance is not always reality, and the result is that many marriages end in divorce.
The divorce process, at minimum, typically involves hiring an attorney, filing a complaint, and engaging in informal or formal discovery. Affidavits, depositions, temporary support hearings, orders of protection, and endless correspondence between attorneys and clients are potentially part of the process as well and can be stressful, even in the best of circumstances. A person will often become his/her own worst enemy in a conquest to be declared the “winner” by a judge. The reality is that TCA § 36-4-131 requires, with few exceptions, that the parties in a divorce action attend mediation before a judge is involved.
“Mediation” is an informal process in which a neutral party conducts discussions among the disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute.” In other words, mediation is an opportunity for the parties to “drive the bus,” make the rules, decide how to end the marriage and move forward before a judge decides for them.
Generally, the mediation process involves an introduction of the mediation rules, an introduction of parties and facts, numerous rounds of negotiation, and SOMETIMES closure. I suggest the ME ME ME’s of mediation to help guide the thoughts and approach before, during, and after mediation.
- Manage Ego: If a party approaches mediation thinking only of self, he/she will ultimately lose. Consideration must be given to the other person, the totality of circumstances, the assets, the expenses, the liabilities, and most importantly, the children, if any. As a mother, I have said to my children, “you only think about ‘me, me, me.’” While the anagram is useful, the childish mentality is not; the picture is always bigger than one person.
- Manage Expectations: Mediators are not magicians with the power to create assets that do not exist. Divorce is a major life change, so prepare for adjustments to lifestyle. In simple terms, two households cost more than one. One person will not get everything, leaving the other person with nothing. The reality is that assets are finite, days in a year are finite, so neither party should expect a landslide in property division, alimony, the parenting plan, or otherwise. Even in a successful mediation, both parties may feel disappointment and loss. It imperative to focus on the goal of mediation, which is generally to reach an agreement and move forward.
- Manage Emotions: Relationships begin and end with emotions, albeit emotions that are remarkably different. If emotions rule the day of the mediation, the likelihood of success is low. Attorneys must encourage clients to prepare, pray, meditate, exercise; do whatever is necessary to ensure a calm heart and a clear head. If marriage is a partnership, then divorce is the process of severing that partnership, and should be approached as a business transaction as much as possible.
If the parties are able to manage ego, manage expectations, and manage emotions, the likelihood of a successful mediation is higher and, the expense of time, money, and emotion associated with a lengthy and often, unnecessary trial may be avoided. Again, application of these skills outside of mediation is not only appropriate but necessary. As we know, now more than ever before, circumstances can change in a moment, and to move forward and survive, a healthy perspective about what really matters in this world is monumental: SELF and OTHERS, not just ME ME ME.
 Tenn. S. Ct. Rule 31, § 1(a).