Divorce Mediation Plus™

Divorce Mediation

Many divorces which are handled in the traditional adversary approach cost too much, financially and emotionally. Both parties wind up poorer and angrier at each other than they were when they (or one of them) decided to divorce. This can be especially devastating where there are children. Divorce mediation is the better, less costly way to achieve a divorce settlement in almost all cases.

How does divorce mediation fit into the divorce process?

As pointed out in the page on Divorce and Family Law, the overwhelming majority of divorcing couples settle their case, rather than letting a judge decide the issues in a contested trial. Once the settlement is reached, it is embodied in a formal, written contract between the parties, called a "Separation and Property Settlement Agreement," "Property Settlement Agreement, "or "Marital Settlement Agreement." This agreement is usually incorporated into the final decree of divorce. The actual "divorce case" becomes a minor administrative procedure, in which neither party goes to court. (Go to Divorce and Family Law for a more complete discussion.)

In the traditional adversary approach, each party retains an attorney, and the settlement agreement is negotiated between the attorneys. The process is slow, cumbersome and expensive. One party meets with his/her attorney; that attorney sends a letter or draft agreement to the other attorney; the other attorney meets with the other party; a letter goes back to the first attorney who meets again with his/her client, and so on. Since the parties are talking to each other through attorneys, miscommunications can occur. The negotiations can be colored by the personalities of the attorneys. Also, the negotiation process is usually conducted side by side with litigation, which increases costs, delays resolution, and increases suspicion and hostility between the parties.

Mediation replaces this with direct negotiations between the parties, with the assistance of the mediator. The mediator informs the parties of the issues they need to decide in a divorce, gives them options, and provides the legal and financial information which the parties need to reach informed decisions - but from a neutral, rather than an adversary, standpoint. The parties are encouraged to see each other's point of view, and to reach solutions that will "work" for both parties and the children. The emphasis is on pragmatic problem-solving in the context of calm discussions.

The mediation process is almost always far faster, since the parties communicate directly with each other, rather than through intermediaries, and there is no litigation. Since each party hears the other directly, communication is more accurate, and ambiguities can be cleared up on the spot. Since the parties are communicating directly in a controlled environment ("kitchen table fights" are not permitted), their ability to talk to each other generally improves, which is particularly important if there are children. With the adversary process, the parties are often more bitter after the divorce than before - and a lot poorer.
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Can I have my own attorney to help me in mediation?

Some people feel a need for the advice of their own attorney during the mediation process, in addition to the information provided by the mediator. The mediation process does not in any way preclude this. Attorneys for individual parties can be very helpful, particularly if they are "mediation friendly," which includes an understanding of the process and the attorney's role in it. In mediation, attorneys do not represent their clients - they advise them. In rare cases, attorneys for the parties attend and participate in the mediation sessions. Once the agreement is fully negotiated, the parties are encouraged (but not required) to obtain independent attorney review of the final draft before signing it.
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Are there different kinds of divorce mediators?

The major divisions are: certified or non-certified, and lawyer or non-lawyer, structured or non-structured, and draftsman or non-draftsman. Within these divisions are further breakdowns, discussed below.

Certification. The Virginia Supreme Court, through its alternative dispute resolution program, certifies mediators in two broad categories: civil mediators and family mediators. The educational and experience requirements are very different. On January 1, 2000, family mediators were further divided into Circuit Court and Juvenile Court certified, with the requirements for Circuit Court certification being considerably higher. Mediators who are certified to receive referrals from Juvenile Court must have training and experience in such areas as child support, custody and visitation. Mediators who are Circuit Court certified must have additional training and experience in family finances and economics, the equitable distribution laws, and other areas necessary to enable them to mediate complete divorce settlements. The bottom line: if you are only mediating issues concerning your children, such as support, custody, visitation and the like, a Juvenile Court certified mediator would be fine. If you are going to mediate all of the issues in a divorce, including disposition of the house, division of other property, how to divide retirement benefits, life insurance, health insurance, taxes, spousal support, and the many other issues which must be addressed in a divorce, your mediator should be Circuit Court certified.

Remember: A person doesn't need to be certified at all to be a mediator, and there are many persons who offer to mediate complete divorces who have no training, experience or certification at all. Just because someone holds himself or herself out as a "mediator" is no guarantee of quality service. And, alas, just because someone is certified is also no guarantee of quality service. But it helps.

Lawyer or Non-Lawyer. Many mediators, even some Circuit Court certified mediators, are not lawyers. If you are mediating a complete divorce, this presents a problem regarding the need for legal information. You are negotiating a legal contract - indeed, probably the most important and far-reaching legal contract you will ever sign. To do so intelligently, and to reach an informed agreement, you need a source of legal information on a variety of subjects - divorce laws, tax laws, laws affecting retirement benefits, property laws, even inheritance laws, to name a few. An experienced lawyer-mediator can provide the legal information the parties need, reducing or eliminating the need for outside sources of legal information. If the mediator is not a lawyer, it would be very ill-advised for either party to go through the mediation process without retaining an attorney to provide him or her with legal information.

Some people prefer to retain a lawyer as an adviser during mediation, even though their mediator is also a lawyer. Some people decide that this is not necessary.

Structured or Non-Structured. There is a philosophy of mediation that says that the mediator shouldn't raise any issues. So, if the parties do not know to raise an important issue which should be decided, it is simply forgotten. Divorce Mediation Virginia, LLC offers a structured, four-phase process (three if there are no children), which leads you through all of the issues you should consider in a logical order.

Draftsman or Non-Draftsman. Some lawyer mediators will draft the actual marital settlement agreement for the parties to sign, which will then be filed with the court and incorporated in the divorce decree. Other mediators (lawyer and non-lawyer) refer the parties to separate lawyers to have the actual drafting prepared and negotiated. We do the former - we draft the agreement as the negotiations proceed, so that the draft "builds" throughout the process. As one area is negotiated (such as the parenting agreement, disposition of the house, etc.), we draft that portion of the agreement dealing with that area. Each time there is an addition or change to the draft, the parties are provided with a computer-generated comparison of each version with the one before it. Building the agreement during the case is especially helpful if one or both parties wish to consult with their attorneys from time to time during the process.
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Conclusion: We have found that the divorce mediation process is vastly superior to the two-lawyer adversary system in a number of ways. It's faster, cheaper, improves the ability of the parties to communicate with each other, and generally improves the post-divorce relationship (important for children). Admittedly, it is not for everyone - not all couples are capable of negotiating their divorce through mediation. If you would like to explore divorce mediation to determine whether it is the better process for you, the first step is to obtain an appointment for an orientation session, where the process (and its likely cost) will be explained in detail to you and your spouse, and your questions answered.

While not all couples are capable of negotiating their divorce through mediation, compared to traditional attorney-led divorce mediation is faster, cheaper, improves the ability of the parties to communicate with each other, and often sets the stage for an improved post-divorce relationship.

Contact us at 703-777-4400 to schedule a consultation to discuss divorce mediation with Divorce Mediation Plus, or email us at [email protected].

Divorce Mediation Plus™

120 Edwards Ferry Road NE
Leesburg, VA 20176-2301
Phone: 703-777-4400
Fax: 703-777-4401
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