Types of Virginia Divorce: Litigation, Negotiation, Mediation, Collaboration Pt 2

Posted on Aug 6, 2021 by Katie Carter

On Wednesday, we began to talk about your options in Virginia divorce.

It’s really important to have an idea about the choices you can make, and how those choices will ultimately impact the outcome in your case. If you just go to an attorney, chances are good that you’ll hear primarily about litigated and negotiated options, without very much room for hearing about mediation and collaborative divorce.

In the spirit of full disclosure, I will tell you that I do often talk about mediation less because I think it’s a great alternative, and more because I feel like people THINK it’s a great option without actually being aware of the advantages and disadvantages associated with it.

When people think of ‘mediation’, they think of not hiring attorneys, saving money, and getting an ‘amicable’ divorce by reaching an agreement. And those things are all good things, so it may seem like a no brainer – but there are risks, too.

A mediator, for example, may or may not be an attorney. Which is fine, maybe you don’t want to hire an attorney. But, consider this: it’s not a mediator’s job to tell you what a judge would do, to encourage you to push for more because of what the court would likely do, or to counsel you about your rights and entitlements under Virginia law.

A mediator’s goal is simple: to help you reach an agreement. Any agreement.

And, in many cases, mediators then DRAFT actual agreements, even if they aren’t attorneys. That’s one of the real horrors, I think. Because as much as we spend our time trying to help smooth the way to a divorce, we also spend a fair amount of time clearing up mistakes that were made in the divorce process. A poorly drafted agreement could end you up back in court, spending money you don’t have, arguing about something that should have been taken care of in the beginning.

Often, I think that people who ask me about mediation should really actually be learning about their collaborative divorce options, because that’s really a better way forward, in my opinion.

Collaborative Divorce

Collaborative divorce is less commonly utilized, mostly because people don’t know about it. For one thing, you have to hire a collaboratively trained attorney – and only a small percentage of the attorneys in Virginia are collaboratively trained.

Without meeting with a collaboratively trained attorney, you can be sure you won’t hear a lot about the merits of collaborative divorce. Can you imagine it? “Oh, let me extoll the virtues of this kind of law I cannot practice…”

But I find that there’s a lot of confusion about collaborative, too, and about what it means. Collaborative is nothing at all like mediation, though I think that the general impression of the words ‘collaborative’ and ‘mediation’ sort of amount to something very similar in the minds of most non-attorney English speaking people. Right? Doesn’t it sound kind of the same? A lot like negotiation, too, come to think of it. So what does it mean for the process, and how is it different?

In a collaborative divorce, you and your husband both hire collaboratively trained attorneys. It’s a decision you make together at the beginning of the divorce process.

In addition to attorneys, you hire divorce coaches – one for each of you. A divorce coach is a mental health professional who will help you work through the divorce. Though you can technically do this without a coach, it’s highly recommended that you have one. In fact, it’s one of the biggest benefits of the entire process.

We’re always encouraging our clients to get help – divorce is, so they say, akin to a death in the trauma it inflicts on a family – and all too often they ignore that advice. In my opinion, having help is really one of the best ways to ensure both a successful divorce process and the start of a post divorce life that is satisfying and fulfilling.

In addition to divorce coaches, you have a financial neutral and a child specialist (assuming you have minor children, of course). These two professionals will help you by looking at your situation and offering suggestions or alternatives designed to maximize the success of the divorce process.

In addition to this, you make a pledge not to go to court. Even if the collaborative process fails (which it rarely does; it has a 99% success rate), you would have to hire new attorneys to go to court.

This is because it’s a generally established principle that subjects or discussions from negotiations – like in settlement conferences – are not admissible in trial. So, if you were negotiating a separation agreement and you had a settlement conference where one of you offered something awesome but, ultimately, the other didn’t take the offer – that wouldn’t be something we could raise in court. Having made the offer, you don’t have to keep it open indefinitely, and having rejected an offer, you can’t go back and accept it if the offer is no longer on the table.

This is designed to facilitate settlement, and to encourage good faith and fair dealing between adversarial parties.
In a collaborative divorce, though, it’s ALL a settlement discussion. It’s not adversarial, like a traditional divorce. The parties agree to share information, and to lay all the cards on the table. Disclosures requested are made; there’s no funny business.

It’s often less expensive than litigated divorce, too, and certainly worth learning more about, if you’re interested in a more amicable type of divorce that puts the needs of your family at the forefront.

Do it Yourself Divorce

You don’t technically have to have an attorney at all. You can represent yourself in any of the courts in the Commonwealth on a divorce or custody case without representation, and you can certainly represent yourself in a negotiation too.

Even if your spouse is represented, that doesn’t mean you have to be (though it’s probably worth considering).

You should spend some time familiarizing yourself with Virginia law, if that’s what you intend to do. A good place to start would be by requesting a copy of our divorce book, military divorce book, and/or custody book, and also by attending our monthly divorce seminar for Virginia women.

For more information about alternatives to traditional divorce, including a discussion of ALL of your available options (not just the ones that attorneys traditionally promote) give us a call at 757-425-5200. Both Sheera Herrell and Lori Michaud in our office are collaboratively trained as well (though none of us are mediators, because who would hire a mediator from the women-only law firm? No husband in the world, that’s who.)