Even when it’s only for a relatively short period, the time that exists in the space between when you and your soon-to-be ex decide to separate and when you reach a signed separation agreement is a particularly painful, anxiety-filled one.
All the while that you’re hoping, desperately hoping, that you’ll be able to resolve things in an amicable way, you worry about what will happen if you don’t – the cost of going to trial, the unpredictability of the results, the difficulty to your lives and, if you have children in common, lives of your children during a particularly tumultuous period.
For most people, a separation agreement is likely. In almost every way that matters, a divorce is different from many other types of legal actions. Specifically, because there’s no possibility that you’ll leave your marriage richer than you were when you decided to end it, there’s often no real point in continued, ongoing fighting. You’ll only pour more money into legal fees and ensure that there’s less to divide between you and your ex – the two people who earned the assets in the first place. It’s not that you care if he walks away with more, but it’s sort of a waterfall effect. If he walks away with less, well, then so do you. And you – and I – definitely don’t want that.
But how do you get to that mystical, magical point where you and your soon-to-be ex can reach an agreement? After all, agreement has been in pretty short supply for the two of you in the recent days, weeks, months, and maybe even years preceding this point. Now, tensions are running high and everyone feels overwhelmed, anxious, angry, sad, and volatile.
You hire an attorney.
Hopefully, he hires one, too. I find that there are very few things that make people more reasonable than working with an attorney who can educate them about their specific rights and entitlements, what judges normally order, what the law allows, and the cost/benefit analysis of each possible alternative.
Sometimes, the early negotiations are fast and furious. In other cases, the parties hit stumbling blocks early. And then what?
You already know that there are only two options: either you reach an agreement or you go to court and let the judge decide how everything will be divided. The longer it takes to reach an agreement, or if you hit a bump in the road and things stagnate, you wonder – what next? What will it take?
Can we try mediation?
Yes! One option is mediation. While it’s not that common for attorneys to represent clients in divorce mediation, it does happen. (What is more common is custody mediation before contested custody cases; some courts require this.)
In my experience, mediation is more often something that people do when they are hoping to avoid hiring an attorney. They work with a shared mediator, often without either party having the assistance of counsel.
A mediator’s job is very different from that of an attorney. While some attorneys are also mediators, and you can hire these attorneys to work as your mediator, when they are hired as mediators, they are not acting in their role as an attorney. If you want them to be your attorney, you’d have to hire them as an attorney. It is against our ethical rules to represent both parties in a divorce; a mediator who is working with both of you is absolutely not acting as your attorney, and would likely be very, very clear on that.
A mediator’s job is to help you reach an agreement. It is not a mediator’s job to educate you about your rights and entitlements under the law, to advocate for you, or to give you any information about what you could possibly expect if your case went to court. The mediator just attempts to facilitate an agreement.
You can go to mediation with an attorney, if you like, too. There are many mediation firms and, if this is something you’re looking into, you should look into the mediators and their associated costs. (It is not uncommon for mediators to have a very, very high hourly rate, sometimes even higher than attorneys!
In either case – represented or unrepresented – you are not bound to participate in mediation past the point that you feel it is helpful. In cases where the opposing party is abusive, I find that mediation can sort of backfire in the sense that these people tend to believe that they can run the show – to the detriment of the abused spouse. If this is you, you should definitely tread carefully and, ideally, go with an attorney.
Four-Way and Judicial Settlement Conferences
In my practice, settlement conferences are the more likely next step in cases where it’s taking a bit of time to reach an agreement. I do this much more often than I participate in mediation. In many ways, it’s similar in the sense that it’s a single day set aside where you and your husband will attempt to reach an agreement.
The main difference is how the agreement is reached. In either case, it’s a back-and-forth negotiation. In a four-way settlement conference, though, you’re both represented by your own separate attorneys, and the negotiation goes back and forth between your two camps until an agreement is reached. This can be done without a mediator, saving you that additional (significant) expense.
In a judicial settlement conference, or JSC, the settlement conference is presided over by a judge, usually a retired one. Rather than leaving it up to the two attorneys, the judge goes back and forth between each side and helps them reach an agreement.
It’s probably ideal to work with a judge, but it can also be costly. In some cases – especially where a divorce is already filed – the cost of working with the judge is covered, though this can vary by locality. In other cases, especially where a divorce is not filed, you might have to pay the judge’s hourly rate yourself. (I find that this is often less than a mediator.)
Regardless of which route you choose, I find that there are advantages and disadvantages. It’s a good idea to talk to your attorney about your options and what specific recommendations she has for you in your case.
For more information, or to schedule a consultation with a licensed Virginia experienced divorce and custody attorney, give our office a call at 757-425-5200.