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Confidentiality in mediation and divorce

Divorce is hard, no matter what way you go about it. Mediation attempts to mitigate some of the difficulty by bringing together two basically reasonable adults and helping them work through their differences.

It only works, however, if everyone is willing to negotiate -- which means being honest and laying out all your cards on the table. You can't go into mediation keeping secrets about your financial holdings, debts or any other information as if you are entering a battlefield where you might need to keep some weapons on reserve.

That can be difficult to do if you aren't comfortable about the confidentiality of the proceedings. Fortunately, Tennessee's Rule 31 allows participants engaged in alternative dispute resolution proceedings to be fairly comfortable with the confidentiality of the proceedings.

In other words, you can speak freely with the mediator without fear that whatever you say or do will be used against you later if mediation fails and you end up going on to regular divorce court.

The mediator has the power to also keep any agreement made under Rule 31 confidential from the court -- which could be very important down the line for a number of reasons.

-- You may have, in the heat of the moment, said things that could endanger your right to custody.

-- You may wish to keep the terms of your custody agreement private, particularly if you are a high-profile couple.

-- Your financial information can remain confidential. This is something that can be a little tricky to understand, however. If the mediation fails, anything that would ordinarily be available to the other party through independent means will still be available to the other party.

-- Perhaps most important, the mediator's decisions, conclusions or opinions are also confidential. They generally cannot be compelled to testify in court or discuss the case with the judge, unless both parties agree to the release of confidentiality.

Your attorney with experience in collaborative divorces can provide assistance if you need more information.

Source:, "Rule 31: Alternative Dispute Resolution," accessed June 30, 2017

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