Divorce Mediators are trained to assist divorcing clients through the settlement process. That is all we do — help clients craft fair settlements and write up those settlement terms in clear, legally binding Settlement Agreements. By focusing only on settlement – without the lure and distraction of flashy legal strategies, courtroom drama, and high stakes positional bargaining (often involving your children) – good mediators keep their clients focused on settling their issues, spotting opportunities and moving on with their lives.
I am a Lawyer-Mediator with several years experience in divorce litigation. This type of background allows me, and divorce mediators with similar experience, to bring to life, in real terms, what may happen if the case is not settled in mediation. For example, 90-95% of divorce cases settle (meaning they do not go to trial). Therefore, doesn’t it make more sense to try to work on settlement first (where you are ultimately headed, anyway), rather than starting the divorce process with an adversarial posture and legal wrangling? I can tell you, from experience that, in many instances, divorce cases will drag on for months – or even years – and then, on the dawn of trial, after thousands of dollars have already been spent in attorneys’ fees – the case miraculously settles. The clients are usually worn out and out of money at that point. Though it shouldn’t get to that point, it is really only the clients that can stop the bleeding, and that is best done by working on settlement first, and using the adversarial system only when necessary.
Lawyer ethics require that lawyers advocate zealously in asserting their client’s position. This ethical mandate often spins a case out of control when a little bit of thoughtful goal setting and financial planning by the client, with the assistance of a professional mediator, could have avoided expensive and emotionally draining litigation. Unfortunately, the vast majority of clients are not experienced in what is appropriate and necessary in a divorce case and, therefore, are relying on their attorney to tell them what needs to be done. The attorney is then stuck between his or her legal mandate to “zealously represent” his or her client, making enough money to pay the huge overhead that many law firms operate under, and doing what is really best for the client in the long run emotionally, financially and for the clients family, as a whole. Usually, “zealous advocacy” wins out, especially in today’s legal climate where lawyers are suing other lawyers everyday, for malpractice, in the divorce system.
When is it essential to get the Court involved? Lawyers and judges are usually necessary in cases where there is domestic violence, child abuse, concealment of assets, or an absolute unwillingness or incapacity for a couple to negotiate, even with the assistance of a professional mediator. But, aside from those circumstances, there is no discernible reason not to try mediation first, before litigation. Everything is confidential, in mediation, and, if it doesn’t work out, nothing you have said in mediation can ever be used against your interest in a court of law. You really have nothing to lose but, maybe, a few hundred dollars (versus thousands of dollars, in the types of cases that I usually handle, just for the attorney’s retainer fee).
Divorce Mediators, in Virginia, are required to be neutral. We do not advocate for either party, but Lawyer-Mediators, like myself, work very hard to ensure that both parties make informed decisions based on the totality of the facts and circumstances presented by their case. Divorce Mediators are permitted to share information, with their clients, in the following areas, where that Mediator has expertise:
- Divorce law – statutory, case law
- Divorce trends – local, national
- Tax implications of divorce (e.g. alimony deduction, capital gains, gift tax laws in relationship to divorce)
- Retirement funds – Federal law and application, necessary paperwork
- Military Law as it relates to military retirement and benefits in a divorce situation
- Federal law as it relates to federal employee’s retirement and benefits in a divorce situation
- Effect of divorce on children –adjustment, bonding, talking with kids about divorce
- Effect of divorce on adult children – relationship skills generally, relationship with parents
- Child support calculations and deviations from those calculations (above and below)
- Range of custodial care plans and implementation of those plans
Experienced Mediators are also able to share a variety of settlement options that have worked for other divorcing couples who had similar issues. Mediation is a creative process, but there is no reason to reinvent the wheel if there is a solution out there, already, that can be tailored to the particular clients’ needs.
In mediation, there is usually not much room for old fashioned, strong arm negotiating tactics, such as:
- An emphasis on the ground of adultery or other behaviorially oriented matters when it comes to settling property disputes;
- Pushing the envelope to classify money as non marital property (non divisible by Virginia courts) when both parties clearly viewed it as marital property throughout the marriage;
- Sudden amnesia regarding known underreporting of income by small business owners (for purpose of calculating support);
- Tying financial issues to matters of custody & visitation; and
- Involving other family members in the details of the settlement.
Divorce mediators do one thing: Help clients settle their cases. We know how to see things from both perspectives and help our clients to do the same. Spending a little energy trying on the shoes of the other party helps settle cases faster than digging your heels in. Legally trained mediators know what judges can and cannot do, and what a typical settlement looks like in their area of practice. But, even though good Lawyer-Mediators know what is going on in the Courthouse, the focus, in mediation, is not on the outside world but on what is right for your family and what is best for you.
All Mediations, the way that I practice, have one clear overriding emphasis: To figure out the best way for both parties and the children to be able to live a comfortable, post-divorce life by finding and taking advantage of as many opportunities presented by the couple’s situation as possible. The idea, at the end of a divorce, is to be happier than you were in the marriage. Why not? What else do you have if you don’t have that? Just a divorce, and that is not an acceptable goal for me and is not a goal orientation that I recommend my clients shoot for, either.
Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator. Robin Graine of Graine Mediation, is a former divorce litigator and has a busy, private divorce mediation practice in Fairfax, Virginia
This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.