Virginia Divorce Mediation: What You Need to Know

Virginia divorce mediation is an option that may be less expensive, less stressful, and less time-consuming than the traditional courtroom drama.

Last updated on March 19th, 2019

When you married your spouse, you intended for 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.

By choosing to file for divorce, you have to make a whole series of decisions about how to separate from your spouse. Many issues have to 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 when planning a divorce. They would appear in court, with all its expenses, rules, and impersonal atmosphere, and argue their case in front of a judge.

Each spouse would hire an attorney and conduct “scorched-earth” and “take-no-prisoners” tactics in order to achieve a favorable outcome.

However, this tactic is both lengthy and expensive, leaving both parties impoverished and emotionally drained.

Further, these tactics are based on decades-old laws which require a reason for divorcing in Virginia.

The Modern Trend

Today, there are many simpler and quicker options for getting a divorce in Virginia. Importantly, some of these options are actually both quick and cheap.

For this reason, many modern couples are turning towards divorce mediation as a viable alternative to the outdated divorce process.

Divorce mediation is when you and your soon-to-be ex spouse sit down and work with a neutral third party to negotiate your interests. Issues are worked out by a trained mediator or mediators rather than between lawyers in a courtroom.

The clear advantage of this process is that there can be some give-and-take between the parties. The participants decide what really matters instead of having a judge deciding everything. Further, mediation can be quicker and easier for individuals who don’t want to appear in court.

Is Mediation Optional?

In most cases, yes.

During a divorce, both parties can ask the other for mediation at any time, without any interaction from the court. However, a judge can order mediation as part of the divorce process.

In this case, the parties must attend at least one session of mediation.

Further, there is no requirement that you reach an agreement or make further attempts at mediation. Instead, think of mediation as sitting down with your spouse in order to work out your differences on your own terms.

This means that you or your partner can withdraw from the process at any time and instead opt to appear in court.

If the mediation is successful, and both parties reach an agreement, the mediator can write up the terms of the agreement so you can submit it to the judge.

Once signed, the agreement becomes binding and the court can enforce its provisions as necessary.

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

Do you want a judge to make the important decisions, or would you rather resolve these issues yourself?

In either case, you should enter divorce negotiations with your best interests in mind. By choosing to take the reins in your divorce, you and your partner can separate on your own terms, and save a good deal of money in the process.

Mediation thus has one goal: the best post-divorce situation possible for everyone involved.

You and your partner should emerge on better terms than if you had fought your way through a divorce in court. In this way, you should be able to work together more effectively on issues that may arise in your future.

Other Benefits of Mediation

Mediation is often 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 year it takes to litigate the case in court. 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.

Also, 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 § 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.

How Much Does Divorce Mediation Cost in Virgini?

If the judge in your divorce case orders you to attend mediation, you generally won’t have to pay anything. This is because the federal Department of Justice uses a fund to help Virginia residents cover mediation costs.

If you choose to go to mediation on your own, however, you’ll have to pay the mediator fees yourself.

As another way of looking at the issue, mediation can help cut out a lot of potential costs related to the divorce. The state saves money by freeing up the court’s time, while you can save money in attorney and legal fees by doing the leg work yourself.

Further, a successfully mediated case can also save you money down the road, since you will most likely not have to appear in court again down the line to fix potential issues with your separation agreement.

Conclusion

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.

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