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.
If you and your spouse make the decision to file for divorce, you’ll have to make several important decisions as part of the separation process.
- How will you divide your property and assets?
- What happens to any shared debt, such as the mortgage on your home?
- Who gets the house?
- Will one spouse have to pay spousal support (“alimony”) to the other?
- Who will have custody of any minor children?
When you hear about costly and extended divorces, it’s often because the parties had to appear to court to settle their differences.
However, this may not be necessary in every situation.
If you and your spouse are able to agree on certain issues early in the contested divorce process, you may be able to dramatically shorten the length of your overall divorce.
For this reason, many couples choose to make use of divorce mediation to avoid at least a part of the normally expensive and lengthy litigation process.
In this article, we’ll outline everything you need to know about mediation and alternative dispute resolution in Virginia.
Alternative Dispute Resolution in the Virginia Divorce Process
Traditionally, divorce has always been a long, costly, and emotionally taxing affair.
The spouses would appear in court, with all of the related expenses, rules, and impersonal atmosphere, and argue their case in front of a judge.
Each spouse would hire an attorney and engage in “scorched-earth” and “take-no-prisoners” tactics in order to achieve a more favorable outcome for themselves.
However, this tactic is both lengthy and expensive, and often leaves the parties both impoverished and emotionally drained.
It can also be a huge burden for separating couples who must continue to raise children together after a divorce.
The Modern Trend
Today, there are several alternatives to traditional litigation for getting a divorce in Virginia. Importantly, most of these options can save you time, money, and stress.
In general, there are three major trends in family law which you should be aware of when planning a divorce:
- Collaborative Law
While this article largely focuses on mediation, you should also chat with your attorney about the advantages and disadvantages of these other mediation types.
We’ll briefly outline each of these processes below.
Divorce mediation is the process of working out the terms of your contested divorce with your spouse under the guidance of a mediator instead of a judge.
However, a judge must first issue an order which refers your case to a mediator. This means that mediation will happen after one or both spouses have filed for divorce.
A successful mediation will result in a completed property settlement agreement.
This means that your divorce will convert from “contested” to “uncontested,” since there will no longer be any areas of significant contention in your separation.
During mediation, both parties will meet with a neutral third party, also called a “neutral” or “mediator,” who can help them reach an agreement about the terms of their separation.
Generally, each party will bring a lawyer to this meeting to help ensure their interests during the process.
Qualified neutrals will always be certified in Virginia’s mediation process, and after often either current or former attorneys or judges.
Like mediation, arbitration is a type of divorce negotiation which takes place outside of the courtroom.
Generally, it involves you, your spouse, and a neutral third party–in this case, an arbitrator.
However, as opposed to mediation, divorce arbitration is more akin to the traditional “adversarial” legal process.
Essentially, during a divorce arbitration, the final decision about the contested issue falls to the arbitrator instead of the marital parties.
Further, this decision is often legally binding.
For example, while a mediator might help the parties negotiate the ownership of a particular item, an arbitrator would instead simply make the decision for them.
This decision would then be legally binding.
Arbitration is most common when the parties have previously entered into an agreement, like a prenup, which includes an arbitration clause.
Lastly, collaborative law is a process that is similar to mediation, but is performed without the neutral third party.
Instead, each party will be represented by attorneys who are certified in the collaborative process.
The parties will engage in several face-to-face meetings where they will workout the terms of their separation with the assistance of their respective attorneys.
Essentially, collaborative law is mediation without the neutral third-party mediator.
Like mediators, attorneys who specialize in collaborative law will be trained and certified in Virginia’s collaborative law process.
Is Mediation Optional?
In most cases, yes.
During a divorce, both parties can ask the other for mediation at any time, without any input from the court.
However, a judge can (and often will) order mediation as part of the normal contested divorce process.
Regardless of who initially suggests mediation, the parties must attend at least one evaluation session once the judge issues the mediation order.
Only after attending this first session can they proceed with their divorce.
The only exception is if you submit a written objection to the mediation with the court.
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.
Put another way, “agreeing to disagree” is also a successful end to the mediation process.
It simply means that you’ll have to appear in front of the judge to work out your differences.
What happens if we come to an agreement?
If the mediation is successful, the mediator will write up the terms of their agreement in a contract.
You can then submit these terms to the judge in your case for final approval.
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 Best 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.
Cost Benefits of Mediation
Divorcing couples don’t just have legal issues to work out, but usually financial issues as well.
The mediation process can also help resolve certain financial problems, especially if the mediator is trained in financial planning.
Such a plan would include tax considerations, retirement, even college education expenses which may arise as a result of your divorce.
Time Benefits of Mediation
One source estimates that a successful mediation will normally take between four and ten sessions.
That translates to about 90 days, versus the year or longer 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.
Privacy Benefits of Mediation
As one final benefit to consider, you should remember that most divorce proceedings are part of the public record.
Your business, your personal life, and every other element of your divorce will be brought out before anyone who chooses to attend your trial or read the transcript.
However, mediation exists outside the normal court system, and is a totally confidential process.
Provided, of course, that both spouses choose to keep their meetings private.
Is Mediation the Best Choice?
Divorce mediation might sound better than a public, expensive, protracted legal battle. However, there are a few important things to consider before choosing the mediation option.
Foremost, it is not a good idea to take the mediation route if you and your partner are deeply hostile to each other.
In situations where you’re only moderately hostile towards each other, however, it may be beneficial.
If you can come to see the mutual benefits of cooperation over confrontation, mediation may work for you after all.
Some professional mediators are experts in defusing hostility and helping the parties work better together.
In addition, mediation might be useful to limit the issues that need to be litigated.
Remember, the more you can agree on, the less time and money you’ll have to spend on litigation and other expensive court procedures.
Mediation may also not be advisable if either of the parties is likely to later contest the terms of the agreement.
Similarly, courts will never request mediation for issues involving child custody or visitation.
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. Rather, it is a tool which may be helpful in particular situations.
How Much Does Divorce Mediation Cost in Virginia?
The total cost of mediation depends on a wide variety of factors, and it’s impossible to even quote a range of prices to expect.
If the judge in your divorce case orders you to attend mediation, you generally won’t have to pay anything for the first consultation.
This is because the Department of Justice uses a fund to help Virginia residents cover mediation costs.
Second and subsequent meetings, however, will have costs which depend on the mediator.
These costs may be allocated between the parties by the judge, or, if one party is indigent, the judge may refer the parties to a no-cost agency.
Generally, you should expect to pay around as much per hour as you would for an hour of your attorney’s time.
However, these costs may vary depending on the mediator’s billing structure.
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.