Why Mediate?

What’s the difference between mediation and litigation?

Mediation is a collaborative process where parties work together (even when they have initially conflicting ideas) to reach mutually acceptable decisions. The goal in mediation is for everyone to walk away with a plan they can live with — not to have “winners” and “losers” — and then to have that agreement simply approved by the court if necessary. In litigation, parties to a dispute each hire their own advocate attorneys, evidence is gathered and presented, arguments for what is “best” or “right” are made by each side, and ultimately a judge — not the parties — decides what will happen.

who makes decisions about my children in mediation?

You do. With the help of a mediator, you and your co-parent communicate about what you hope for your children in the future, and work toward a plan for your children’s well-being to which both of you can agree. In this way, you retain more control of the decisions about your family’s future, rather than having a judge who does not know your family or specific personal circumstances very well make legally binding decisions on your behalf.

i am not even sure of what issues we need to discuss in a divorce. can you tell us?

Absolutely. One of the mediator’s key jobs is to help you identify and list issues that need to be decided. A well-prepared mediated divorce or separation agreement will cover all the decisions that are necessary. It can also include any additional matters that you feel are essential for you to make firm decisions about, as long as agreement can be reached between you and the other party. Your final written agreement should be realistic, comprehensive, and should cover you for the foreseeable future, recognizing that circumstances do sometimes change and that not everything can be predicted in advance.

will we have to go to court for our divorce if we mediate? will our mediator also be in court?

If you want to file for a divorce, the court will have to review and approve your legal petition for divorce. A mediated agreement about all the specific issues of your divorce would be included with this petition if you have chosen to have one prepared by your mediator. However, none of this means that you will actually go to court. In many divorces that are successfully mediated, the parties hire a single attorney at the end of the process to submit the legal paperwork (and mediated agreement) for an uncontested divorce, and the divorce is granted without either divorcing spouse ever appearing in court or being served with a subpoena. If you cannot agree on all the issues during mediation and part or all of your divorce case goes to trial, your mediator will not appear in court. Mediation is confidential and a mediator cannot be called upon to testify or advise in a later court case.

What happens if I want something in my divorce agreement that I’ve never heard of someone doing before?

One of the great things about mediation is that you can get creative and “think outside the box” about what works best for you and your family. In mediation, there is time to consider and fine-tune multiple alternatives before making a final decision. Because of this more open and fluid process, clients often come up with solutions that may not have even been considered in a traditional divorce or separation settlement.

How much does mediation cost?

Mediation usually costs far less than a litigated divorce or separation. In litigation, each party pays his or her own attorney an hourly rate to act as an advocate and counsel for that individual, including gathering evidence, conducting depositions, and writing proposals that may be accepted or rejected by the other party. In mediation, you and your ex-partner pay one hourly fee together (a substantially lower fee than most family attorneys charge) as you work together toward a single written agreement. The process is not only less expensive by the hour, but also is typically far more time-efficient, compounding the savings. See the Fees & Services page for more details about FFM’s fees.

Is mediation right for everyone?

No, it’s not, but for most people who are involved in a “typical” divorce or separation, it’s a great option. Mediation is not right for couples where there is an extreme imbalance of power (as in some domestic violence cases), where people are not able to make functional decisions for themselves (as in some cases of severe mental illness or alcohol or drug addiction), and in some other circumstances. But for adults who are able to think clearly and speak for themselves about what they would like to see happen, it is usually appropriate.

I’m overwhelmed by the emotions and information overload of divorce and separation. can mediation really work for me?

Yes, it probably can. Divorce can be incredibly stressful, and it is typical to feel overwhelmed and volatile at times. Mediation provides a way of putting a constructive framework around a lot of what you are feeling and experiencing. Mediation is not psychotherapy, but many people find that they feel calmer and more in control after mediation, knowing that they have managed the crisis of divorce or separation as well as they could with the help of an informed professional. It can also be useful to seek support from a mental health professional and/or support group as you get through the separation. It’s a lot to handle, and there is no shame in seeking help as an individual to better manage the stress.

can you provide me with legal advice?

No, I cannot. For starters, I not an attorney (my educational background is in clinical psychology). But even if I were a lawyer, mediators (even when they are attorney-mediators) are not permitted to give legal advice. This is in part because the mediator is to remain completely neutral, not making predictions or recommendations about the case. Plus, the mediator works for both parties and serves the process as a whole, not either person individually. However, a mediator can give you straightforward facts about the laws governing divorce and custody in Virginia so that you can be more informed. Additionally, a mediator can help you brainstorm potential solutions to the issues you are facing, drawing in part on his or her experience with other families in similar situations.

What if we can’t agree?

It’s okay to try mediation and not completely come to agreement, although I hope you will find that you resolve more issues than you thought might be possible. Remember that even if you don’t come to full agreement, you will probably leave mediation with a better understanding of the problems at hand and a better sense of what is most important to you as you move forward in other ways. Also, please be sure to see the other sections on this page about confidentiality and the court process for more information about what will (and won’t) happen if you don’t reach full agreement in mediation.