Mediation is a process in which two parties sit down with a neutral third party called a mediator. During this process, the mediator cannot take sides or provide legal advice. Instead, the mediator listens to both parties regarding the issues that must be resolved and helps those parties to develop compromises in order to come to a mutually agreeable resolution in order to avoid divorce court.
Divorce mediation in Virginia may take place with or without lawyers present. However, it is advisable to retain the services of a Virginia divorce attorney to protect your rights and interests.
Benefits of an Attorney
There are a number of reasons why an individual may want an experienced attorney present during the mediation process. First, it is important to note that, as prescribed under mediation rules, the mediator cannot provide legal advice to either party.
Thus it can be extremely useful for a person to have a mediation attorney present who can provide legal advice regarding any proposed compromises that are made. Such advice is of considerable importance, as it allows an individual to understand his or her rights within the context of any proposed agreements, and what those rights would be without said agreements in place.
Finally, if one party to a mediation secures the services of a mediation lawyer, the mediator will require the other party to do the same. This ensures that no party has an unfair advantage during the mediation process.
If a mediation is conducted without attorneys, the mediation will typically take place over a series of meetings. Generally, the two parties go in for initial meetings with the mediator. During these initial meetings, the mediator gives both parties the opportunity to:
- Speak about what is most important to them
- Discuss their positions on certain contested issues
Thereafter, the mediator will conduct a series of meetings between the parties until they have reached a resolution on all issues.
If a mediation is conducted with attorneys, this process can be a bit different. Generally, the attorneys will prepare in advance of the mediation to deal with all of the aspects of the divorce. When both parties mediate with attorneys, each party should have a separate space in which to speak privately while the mediator will typically go back and forth between both, trying to share proposals and compromises with each side. Generally, mediations in which attorneys are present take place over one or two sessions, rather than several.
Issues To Be Examined During Mediation
One issue that is often discussed during mediation is spousal support. When spousal support is requested, it can be a hotly contested issue. Thus, mediation can be valuable in truly understanding the financial need of the person asking for support and the financial ability of the potential payor of that support. This information is important in determining the amount of appropriate spousal support to be paid, if any.
Another issue that is often discussed during mediation is the division of property. For example, if two parties have a marital residence with equity in it and one of the parties has retirement that needs to be distributed, sometimes, the mediator can help work with the parties to understand which party may need more of a portion of the equity in the house versus, perhaps, a greater portion of marital retirement.
No matter the issues examined during mediation, a mediator can play an integral role in discussing each party’s priorities in the divorce process and conveying those priorities such that a resolution can be reached.
Ensuring Your Rights Are Protected
A mediation lawyer plays an important, delicately balanced role in the mediation process. While such a lawyer must advocate for his or her client’s rights during this process, it must be done without impeding compromise. To do so, a mediation lawyer will provide active advice regarding Virginia law and the client’s rights during the mediation process. In this way, the client is fully informed of the benefits and possible outcomes of mediation versus those of divorce court litigation. In addition, the party will be fully aware of any potential rights or outcomes he or she is waiving by choosing to pursue mediation, rather than litigation.
The lawyer can also help the client decide what sacrifices might be worth making in order to avoid litigation. Without a lawyer present, it can be difficult for an individual to fully understand the costs associated with a case that proceeds to court after a mediation falls apart and litigation is necessary. Thus, an attorney can provide a comprehensive perspective on the costs and benefits associated with accepting or declining any proposed compromise.