Why is mediation better than going through attorneys?
The mediator is an impartial professional whose job it is to help both parties work to achieve a fair and practical settlement. Mediation is often less expensive, quicker, and less emotionally draining than the alternatives. And it usually leads to agreements that are more fine-tuned. A full mediated settlement isn’t always possible in very case, however, and at times one or both parties need a lawyer to negotiate the settlement. But the risks and costs of the adversarial system are such that it usually makes sense to try mediation as a first resort.
Do I also need to consult an attorney when I go through mediation?
Often it’s a good idea, but it’s a matter of personal choice. On occasion the mediator may insist that both parties be represented by lawyers if their own negotiations seem to be leading to a settlement that is likely to create problems or serious dissatisfaction in the future.
What should one look for in selecting a mediator?
The most important criterion is experience. Mediation requires a variety of skills that can best be developed in the course of handling a variety of cases over a long period of time. Although a mediator need not be a lawyer, often experienced family law practitioners have the best understanding of the creative options that allow cases to settle by mutual agreement. Even so, a retired judge or an attorney who has practiced in the family law area for a number of years may still not have much actual experience as a mediator.
Isn’t it better to find a mediator who bills at a lower hourly rate?
Everything else being equal, yes. But everything else is rarely equal. If mediator B bills at half the hourly rate of mediator A, but takes more than twice the time to cover the same issues, then mediator B is actually more expensive. And a mediator who fails to achieve a good settlement is always more expensive than one who succeeds, regardless of the hourly rate. There are immense differences among mediators in regard to skills, training, professional background, and experience.
What is the most important thing to remember in going through mediation?
Proper preparation. That means doing one’s “homework” (filling out the worksheets) and everything else that is needed to make the sessions productive.
Is it up to the mediator to recommend the terms of the settlement?
Usually not. The mediator’s job is to help the spouses negotiate with each other in an effective way. But that doesn’t always work, and it isn’t always possible. In such a case, if both parties ask the mediator to make a recommendation, that is another option. But it should only be the method of last resort.
How many sessions are required to reach an agreement?
That varies greatly from case to case. At the first session the mediator will ask questions so as to have the background to give the spouses a fair estimate of the agenda and the timetable for the mediation.
Is the agreement reached through mediation binding?
Yes, just like any other agreement that is signed by the parties. It’s up to the mediator to make sure that the mediation process is conducted so that there won’t be any question as to the validity of the agreement.
What does a mediated marital settlement agreement look like?
It should look very like any other marital settlement agreement. Drafting an agreement requires the technical skills of a lawyer. A mediator who isn’t a lawyer isn’t authorized to draft agreements as such. Unfortunately, some attorneys still draft agreements in a style that may be called “legal gobbledegook,” rather than in plain English. But many attorneys and judges are coming to believe that the best legal drafting is clear, understandable English prose.
Is what goes on in the mediation confidential, or can it be used in court?
Virginia has a very strong confidentiality statute for mediation. This means that nothing that transpires in the mediation can be used in court if the mediation breaks down. But a written agreement signed by the parties can and will be used in court, because it settles the case.
Does the mediator also process the divorce?
When the mediation leads to an agreement, as it usually does, then the agreement puts the courts “out of business” as to the elements of the settlement. But the divorce itself is a separate process, and that must be done through the courts. And in Virginia, as in most of the surrounding states and the District of Columbia, the divorce is adversarial in form. This means that even though a case is uncontested, “no fault,” and based upon an agreement, there still has to be a plaintiff and a defendant. Since the mediator must be impartial, the State Bar won’t permit the mediator to file the divorce action, since that would technically mean representing one party against the other. The mediator can review with the spouses the options for processing the divorce expeditiously and at a reasonable cost.
What if an agreement has to be changed in the future?
The parties to an agreement can always modify it by mutual agreement. And if there is a material change in circumstances in the future, child custody and child support remain subject to modification. The same is usually, but not always, true of spousal support.
Can I have a separate session with the mediator?
Yes, if there is a good reason to do so and both parties agree. Anything told to the mediator in confidence in a separate session must remain confidential, but the mediator can’t use any such confidential information adversely to the other party. The mediator may at times suggest a separate session, but this is usually just to understand the goals and negotiating positions of each party, not to try and learn disparaging facts about each of the spouses.
Does mediation usually lead to an agreement?
Yes, most of the time. But not always. If an experienced mediator believes that a settlement is highly unlikely in a given case, the parties should be informed of this so as to keep them from wasting time and money when a successful outcome is not going to be reasonably possible.
What are the fees for mediation?
Billing is at our hourly rate of $300 in increments of 1/10ths of an hour. Office meetings, telephone conferences, e-mails and time spent in review and drafting are billed. Phone conferences are billed at a minimum of .2 hours. We reserve the right to bill for long distance phone call charges, copies, faxing and courier service if these become extensive. We do not bill for a meeting when it is canceled or rescheduled. Payment may be by personal check and we also accept payment by Visa or MasterCard. Any issues regarding billing must be addressed within 30 days of the monthly bill in question. All bills are payable in full by the 20th of the month following the month covered by the bill, unless special arrangements are made with Pearl DiPasquale. She can be reached at (703) 264-1000 during her office hours (M 12-2, W 11-3, & Th 11-3) or by e-mail at www.lg-mediation.com.
Are retainers required?
We usually don’t require retainers, but we reserve the right to do so. Payment in full is expected on receipt of each monthly bill (see above). If this is not possible, then a regular monthly payment plan is required of each client At times we will agree to delay in payments where (a) the client has a serious present cash flow problem and (b) he or she will be receiving assets in the reasonably foreseeable future. Any delay should be requested by phone (see above) or in writing, together with the reason and the plan.
How are fees divided between the spouses?
Our computer will bill each party for 50% the bill unless we are told otherwise. The division of fees is reflected in the hourly rate, which is shown on the bill. The bill you receive reflects what you personally owe. For example, if you are responsible for 50%, your bill will show the correct number of hours but they will be billed at 50% of the hourly rate. Billing is at 100% of the hourly rate in two situations: (1) you and your spouse are billed as a couple because payment is from joint assets, or (2) the billing is for a separate conference in which you explain your position or interests to the mediator. In the latter case, your spouse would not be billed for that time. If you feel that the division of fees between you and your spouse is not fair, you may make that an agenda item if you do so early in the mediation. We don't bill for a reasonable time used to mediate that issue.
What disclosures by mediators are required by state law?
To protect the validity of the mediation, the mediator is required at the start of the mediation to advise each party of the following: The mediator does not represent either party. State law requires that you be informed in writing that (a) the mediator does not provide legal advice; (b) any mediated agreement will affect the legal rights of the parties; (c) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and (d) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement or should waive his or her opportunity to do so.