How do I select a Mediator?
Mediators can obtain certification from the Office of Dispute Resolution of the Supreme Court of Virginia. There are different levels of certification with the highest level of Advanced Family Certification. To achieve this level, a mediator must complete certain initial and on-going training requirements and have conducted many family mediation sessions on an advance level. It is also important to look at the mediator’s background, experience, training and involvement in professional organizations relating to alternate dispute resolution. It can be helpful, but not necessary, to have experience working as a family law attorney.
Can both parties hire one mediator to handle the divorce instead of hiring an attorney?
No – A mediator may have qualifications as an attorney. However, if selected as a mediator the mediator’s role is as a neutral. The mediator can give legal information but cannot provide legal advice or represent either party in court proceedings. Either party has the choice whether to seek legal advice from his/her own attorney.
Does each party have to have an attorney prior to commencing mediation?
No. It can be helpful for each party to consult with an attorney if a party has questions about process options or specific legal questions. However, it is not necessary for either party to have an attorney when commencing mediation. The parties are encouraged to have legal counsel as needed throughout the mediation and prior to signing any written agreement that may be legally binding. If either party chooses to have counsel be present for some or all of the mediation, then both parties attorneys need to be present.
So what is the role of each party’s attorney?
To provide legal advice and representation to the attorney’s client, to help prepare the client for mediation, to finalize any settlement contract between the parties, and to handle any court proceedings (this could be as simple as an uncontested no-fault divorce or entry of an Agreed Order).
Can the matter be mediated if already in litigation?
Yes, sometimes clients will try or their legal counsel and/or the court will refer the parties to mediation while litigation is pending and before the matter is decided in a trial. Settlements reached when a trial is pending are often accompanied by time and financial pressures. In addition, the adversarial nature of litigation may create hostility which can make it more challenging to have productive dialogue and reach an acceptable resolution in mediation.
Who decides the outcome?
The parties decide the outcome. The Mediator does not decide the outcome for the parties. The Mediator is a neutral and impartial facilitator. Any settlement needs to be voluntary and informed and with a lack of coercion.
If I agree to mediate, what am I committing to?
At the first meeting the mediator will review an Agreement to Mediate, which outlines the ground rules while the parties are in the process. Most of my mediations involve a process where the parties meet for a series of two-hour meetings (with enough time in between to do the preparation needed in between meetings and to be ready for the next meeting, i.e., 10 â€“ 14 days between sessions). On average, I see parties for a range of 3 – 6 sessions. At any time either party may choose to discontinue mediation and choose to proceed with a attorney assisted negotiation, Collaborative Practice, or Litigation.
How long does the mediation process take?
The duration of the mediation process depends on how legally complex and emotionally complex the issues are. It also depends how much detail the parties want to go into and how similar/different their interests/goals are. A lot of the foundation is laid in the first meeting and, unless there is just a minor issue, there should not be an expectation that the mediation will reach full settlement in the first meeting. If there are external time deadlines that apply, the Mediator should be informed so that more time can be set aside for sessions early on.
What is the definition of a “successful mediation”?
Any time the parties can use the assistance of a neutral to discuss issues that may be difficult, it helps the parties to problem solve directly in a non-adversarial manner. The most common goal is to reach a settlement agreement that resolves all legal issues. The more that can be resolved in mediation, the less that remains for the attorneys or the court to resolve through more traditional negotiation or litigation.
What if the parties are at impasse?
The Mediator has skill and training in listening to the parties interests and goals, identifying barriers between the parties, helping brainstorm options, and assisting the parties in evaluating their options so they can avoid positional bargaining and focus on creative problem solving.
Who prepares a settlement document?
The Mediator prepares a Memorandum of Understanding that summarizes what has been worked through in mediation and what, if anything, remains. If both parties and their attorneys agree, the Mediator may prepare a settlement document for review by counsel prior to execution of the parties.