Virginia Divorce Mediation: What You Need to Know
So the day has come that you never wanted. You have made the painful decision. It is time to end a marriage that is just not working out anymore. When you got married, you intended it to last forever. But here you are, about to make one of the most painful decisions of your life. It has to be done, so that you and your partner can move on with your lives.
Now you have a whole series of decisions to make. So many issues must be worked out, even in the most civil of proceedings:
- How will property and assets be divided?
- How will debt be divided?
- Who will get the house?
- How will support of minor children, or of the ex-spouse, be allocated?
- Who will have custody/visitation?
The Old Way
Traditionally, people had few options other than going to court, with all its expenses, complex rules, and impersonal atmosphere. The divorcing couple would each hire their own attorneys and conduct “scorched-earth” and “take no prisoners” litigation. This tactic leads to lengthy and expensive cases, where the parties are impoverished, children suffer, and the former spouses cannot move on with their lives.
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The Modern Trend
Today, more options exist, such as mediation. Divorce Mediation is when you and your soon-to-be ex spouse sit down with a neutral third person to negotiate your interests. Issues are worked out by a trained mediator or mediators, rather than between lawyers in a courtroom.
A clear advantage is that there can be some give-and-take between the parties. The participants decide what really matters instead having of a judge deciding everything.
Is Mediation Optional?
Virginia Divorce Mediation can be undertaken at any time by the parties and does not need to be ordered by a court. However, if a court does order mediation, the parties are required to attend at least one session at no cost to the parties. There is no requirement that the participants reach an agreement or make further attempts at mediation. That means that you or your ex-partner can withdraw from the process at any time after the first meeting, and opt to go to court, if you so choose.
If divorce mediation was successful and the parties reach an agreement, the mediator can write up the the terms of agreement. Once signed, it becomes binding on the parties and a court can enforce its provisions. When the agreement involves property it is called a “Separation and Property Settlement Agreement.” When it involves custody or visitation it is called a “Custody/ Visitation Agreement.”
Note: Agreements regarding custody, visitation, or child support do not become binding unless a judge approves them. A judge will always review such agreements to ensure they are in the best interest of the child or children involved.
Mediation Occurs with your Interests in mind
Who do you want making the most important decisions in your life–a judge or yourself?
Instead of a judge who is a stranger to you, why not bring in the person who knows the most personal aspects of your life? In mediation, the person making those decisions knows you and your children better than anyone else – because it is you! Ideally, it is a win-win situation for all of you.
Finally, the money you and your ex-spouse might have spent to hire attorneys to hash out your divorce in court, can instead be spent for other needs.
Mediation thus has one goal: the best post-divorce situation possible for all concerned. You and your partner should emerge on better terms than if you had fought your way through a divorce in court. Thus, you should be able to work together more effectively on issues that may arise in your future.
Mediation is also an option for people who have already worked out the terms of the divorce in court but find themselves with a dispute to resolve at some point in their post-divorce situation.
Other Benefits of Mediation
Mediation is sometimes recommended when children are involved, in order to secure their best interests. If warranted, children may even be involved in the mediation sessions. Unlike a courtroom situation, the mediator works to help parents understand and address not just “who should get what,” but also the emotional needs of the whole family to achieve the best possible, post-divorce scenario.
Ideally, the parties involved may come to understand each other’s needs more fully, working out decisions that are most agreeable to their mutual benefit.
Divorcing couples don’t have just legal issues to work out, but usually financial issues as well. The mediation process can help resolve these as well, especially if the mediator is trained in financial planning. That would include taxes, retirement, even college education expenses that will arise.
Unlike a judge in court, a mediator cannot make any decisions for the couple. Instead, the mediator works to keep communication flowing between the couple, even to help them learn to empathize with each other. It is up to the parties in the divorce situation, as to what they will do about the suggestions that are given.
One source estimates that mediation is worked out through four to ten sessions. That translates to about 90 days, versus the average litigated case in court of more than a year. The average litigated case can also cost around five times as much as a case worked out through mediation.
Something else to consider: divorce proceedings in court are public. Your business, your personal life, is brought out before anyone who chooses to sit in the courtroom or read the transcript. Divorce proceedings are public record and open to anyone. Mediation, however, is as confidential and private as you choose to make it.
Is Mediation the Best Choice?
While Virginia divorce mediation might sound better than a public, expensive, protracted legal battle, there are a few important things to consider:
Foremost, it is not a good idea to take the mediation route if you and your partner are deeply hostile to each other – unless you can come to understand that mediation may help you to avoid the drawbacks of hammering out conditions in court. If you can come to see the mutual benefits of cooperation over confrontation, mediation may work for you after all.
But mediation may not be off the table entirely, even if your relationship is not a good one. Some people may be able to work out their respective needs in the divorce with less hostility towards each other, when a neutral third party is present. Some professional mediators are experts in defusing hostility and helping the parties work better together. And as a last resort in mediation, some couples may agree on the “caucus option,” where they are in separate rooms, with the mediator going back and forth between the two parties.
In addition, mediation might be useful to limit the issues that need to be litigated. Most people can find areas of agreement in a legal battle. The more areas where the parties can agree, the less time and money will be spent litigating them. This focuses the court’s time on the areas that are truly irreconcilable.
Mediation may also not be advisable if either of the parties is likely to later contest the terms of the agreement. Nor will the courts mandate it for child custody or visitation, if there has been abuse, or allegations of abuse, in the relationship.
Some couples may be on good enough terms, with good enough communication between each other, to be able to work out the majority of details about their situation before they even enter the mediation process. In that case, the mediator may only need to assist with resolving the most complicated aspects of the divorce.
But this unofficial, pre-mediation discussion is NOT a good idea for couples who are not on highly amicable terms. In such cases, the arguments and bad feelings that can arise, may complicate and lengthen the mediation process.
Because there are many factors to consider, you may want to contact an experienced attorney to help you understand your rights and options. Mediation is not a good fit for everyone.
Qualifications of a Mediator
The mediator that the parties choose, should be well-trained and must be totally impartial. He or she can be a psychologist, a counselor, a social worker, a retired judge or an attorney.
In Virginia there many organizations that provide mediation services.
However, Virginia law forbids anyone who is acting in the role of a mediator, from giving any legal advice to either party. Nor can that attorney represent either party in a court of law in connection with the divorce, either during or after, the mediation.
Both parties are still entitled to have their own legal counsel during mediation, independent of the mediation process. And the mediator may communicate with the lawyers of the parties when applicable. If the parties agree, their attorneys may also be allowed to attend the session or sessions.
The mediator may also call in other experts to the mediation sessions, such as child specialists, when it might be helpful.
You Have Options
You have options in the type of mediator that you choose, whether a lawyer or non-lawyer mediator. A lawyer mediator cannot give legal advice, per the law – no mediator can. But a mediator can provide legal information, which is different. And a lawyer mediator may feel more comfortable than some other mediators, because of his or her training, in providing that information. Such information can be complicated but also important for your specific situation.
Parties considering mediation, should also be aware, that Virginia Code Section 20-103 gives the courts the authority to require divorcing persons who have custody issues, to attend a class or seminar about such issues. This should take place before the mediation begins. Such classes address the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities.
After that first mandatory session, the court may choose whether to require any further seminars.
“Whenever possible, before participating in mediation or alternative dispute resolution to address custody, visitation or support, each party shall have attended the educational seminar or other like program. The court may grant an exemption from attendance of such program for good cause shown or if there is no program reasonably available.”
What does Virginia Divorce Mediation Cost?
Virginia Divorce Mediation does not cost the participants anything if ordered by a judge. The federal Department of Justice has created a fund to help Virginia cover the costs of mediation. Going to court is very expensive both for the Commonwealth of Virginia and the participants.
In comparison, mediation is not nearly as expensive and helps the parties with long-term communication. Thus, the state is actually saving money and freeing up the court’s time by funding judge ordered mediation.
However, if you attend mediation that is not ordered by a court, you will have to cover the costs yourselves. The state allows mediators to charge the court $100 per session for court-ordered mediation. However, when not ordered by the court the costs to individual parties can vary. You should verify the costs of Virginia divorce mediation before hiring a mediator in your particular case.
Virginia divorce mediation is an option that may be less expensive, less stressful, less time-consuming, and less harmful to children than the traditional courtroom drama. However, it is not for everyone and it requires cooperation that not everyone is willing or able to give.
You should consult with an experienced attorney to see if mediation is right for you. If you choose mediation, do your research, find a mediator who is qualified to meet your specific needs, and do your part to make the process work.