The Disadvantages of Mediation

Posted on Jan 29, 2016 by Katie Carter

Many women, when faced with the possibility of a divorce, try to think of alternatives to the traditional divorce. Most people are wary of hiring an attorney at all, whatever the reason. Lawyers, after all, don’t have the best reputation. They’re expensive, for one thing, and they’re difficult to deal with. Everyone has probably heard a divorce horror story or two, too.
So it’s only natural that, when confronted with a divorce, lots of people try to do whatever they can to think outside the box, to imagine a divorce scenario that doesn’t include hiring an attorney. There aren’t a ton of alternatives, though. Besides, there’s a lot at stake in a divorce. In fact, it’s a pretty life changing experience. Not only will you have to figure out how to handle custody and visitation of your children (something that’s pretty daunting in and of itself), but you’ll have to divide all of your financial assets and liabilities, too. It’s not just a question of dividing the money in your bank accounts; there are retirement accounts, stocks, bonds, mutual funds, real estate, credit card debt, and more to consider. What’s there to divide varies from marriage to marriage, but in every case almost everything you have owned, purchased, or acquired during your marriage is subject to division. That’s a pretty big deal.
Lots of people consider doing it themselves, but they don’t want to draft an agreement for themselves that is worse than what their husband’s attorney would draft. Without an up to date, in depth knowledge of Virginia law and how it relates to divorce cases, that’s something that is absolutely possible to do. There’s at lot at stake, and it’s difficult to imagine taking that kind of risk. (Of course, do it yourself divorce can be a great option, too, believe it or not! For more information, click here.)
In an effort to look into other alternatives, lots of women start to think about mediation.

What is mediation?

In a mediated divorce, a husband and wife hire a mediator to help them reach an agreement about how all the assets and liabilities in their divorce will be handled.
Though there are many different options when it comes to divorce, there are really only two main ways to get a divorce. You either negotiate a signed agreement, or you litigate and allow a judge to decide. When you negotiate an agreement, you’re pursuing an uncontested, no fault divorce.

Contested and uncontested: What’s the difference?

An uncontested divorce means that, rather than fighting over how everything will be divided, you and your husband can reach an agreement. (Of course, that doesn’t mean that it’s EASY to reach an agreement, or that the two of you never disagree; it just means that, eventually, maybe even painstakingly, you eventually reach an agreement.) In a contested divorce, on the other hand, you can’t reach an agreement so, eventually, after fighting about it long enough, you have to go to court and let the judge decide how things will be divided.
What’s the difference? Uncontested divorces typically cost less, take less time, and, ultimately, allow the people involved (you know, the husband and wife) to have as much control over how things will be divided as possible. When the judge decides, on the other hand, you’ll just have to live with his decision.

Is that a risk you want to take? Of course, that’s up to you.

Fault and No Fault: Does it matter?

A mediated divorce is also a no fault divorce. That doesn’t mean you don’t have fault based grounds, it just means that you’ve chosen to move forward without using them.
Most people think that, if they have fault based grounds, they have to use them. Or that they’ll be better off using them. Or that having them somehow justifies their divorce, so it’s a little easier to stomach. All of those things are pretty easy to understand.
In Virginia, the fault based grounds for divorce are cruelty, apprehension of bodily hurt, desertion abandonment, felony conviction, adultery, sodomy and buggery. (An entire description of each of the grounds is a little bit beyond the scope of this article, but if you want more information, just click here.) Fault based grounds are more difficult than no fault grounds. Because fault based grounds carry potential civil and criminal penalties, to get a divorce granted using fault based grounds you’ll have to go to court and prove to the judge that your grounds exist. Again, that’s time consuming and expensive.
So, a mediated divorce is an uncontested, no fault divorce.
When you use a mediator, you, your husband, and your mediator negotiate an uncontested, no fault divorce.
Are there other ways to get an uncontested, no fault divorce? Of course. You can negotiate an agreement using an attorney, through the collaborative divorce process, or even by drafting an agreement on your own. Mediation is just one way to get an uncontested, no fault agreement.

What’s involved in a mediation?

In a mediation, you and your husband share a mediator. A mediator may or may not be an attorney (but, in most cases, is not), and is employed specifically for the purpose of helping the two of you reach an agreement. It is not a mediator’s job to advise you on the law, let you know what your entitlements are, or tell you what a good or bad agreement might look like.
Over the course of a couple of sessions, you and your husband, with the assistance of the mediator, will hash out an agreement.
It’s a negotiation, so you’re allowed (and, in fact, encouraged) to negotiate. You don’t have to accept an offer; if you don’t like it, you can turn it down, suggest an alternative, or even walk out. Ideally, though, you and your husband would stick with it until you had an agreement in place. At that point, once your agreement was negotiated and signed and after your period of separation had run (in Virginia, one year, or six months if you don’t have any minor children), you could move forward with your uncontested divorce.
Since you share a mediator, ideally a mediated divorce costs less and takes less time than a divorce with an attorney. That’s not always the case, of course, but that’s certainly the hope.

What are the advantages and disadvantages of mediation?

In the best cases, mediation is quick, cost effective, and convenient. Since you share a mediator, rather than each hiring your own (like you do when you hire an attorney), there’s less expense involved. Since you share a mediator, it’s also much less contentious. When you have an attorney, she is arguing vigilantly on your behalf, while, on the other side, your husband’s attorney is arguing on his behalf, too. Though that’s awesome in a lot of ways (because you know you have someone in your corner who is advocating for your best interest), it can drive up costs and make settlement take longer.
Ultimately, you have to ask yourself. Do you want someone on your side, in your corner, who is familiar with Virginia law and can advise you on what a good agreement would look like (or what you might receive if you took your case in front of a judge)—or do you want to save money?
Mediation can be a good option for a lot of people, but having a mediator is different than having an attorney. An attorney is a advocate, someone whose only interest in a case is your best interest. An attorney knows the law, has experience with cases like yours, and understands the courts, the opposing attorney (that’s a big one!), and can tell you what a good agreement would be—or when you should take your chances with a judge instead.

I want to try mediation. What should I know ahead of time, to make sure that it’s as successful as possible (and I get a good agreement while I’m at it)?

Mediation can be a great option, but you have to do it the right way—or risk getting a not so awesome agreement. (And who can risk that?) The good news is, it’s pretty easy, and involves just two simple steps.
1. Before mediation, meet with an attorney.
2. After mediation, meet with an attorney.
You don’t have to hire an attorney to meet with one. You don’t have to hire an attorney to ask questions. You can just meet with them, pay their hourly rate (or their consultation fee, depending on the attorney), and ask questions to your heart’s content. You know, for an hour.
Before mediation, you can get a good idea of what the law allows. The attorney can advise you on what you can expect, including what are good points for negotiation, and what the judge might automatically award. That way, when you walk into mediation, you can do so with your head held high, because you know what kind of an agreement would be a good one for you.
After mediation, you can have your agreement reviewed by the attorney before you sign it. Un-signing an agreement is all but impossible, so you’ll want to make sure, beforehand, that your agreement is as good as you think it is and says what you think it does.
Attorneys have a lot of advantages over mediators, but one of the biggest is that we know what’s involved, not just in drafting agreements, but in defending them once they’ve been drafted. Will your agreement protect you if he doesn’t do what he promises he’ll do? Will it protect you when it comes to bankruptcy, tax consequences, or other unintended consequences that might arise later on? Mediators are only ever involved in drafting an agreement; they’re never involved in upholding or challenging an agreement later. Make sure that your agreement protects you in every possible way by having it reviewed by an attorney before you sign it.

Who is a good fit for mediation? Who might not benefit from mediation?

Mediation, like anything else, isn’t a good fit for everyone. There are people who are more or less likely to benefit from mediation, depending on their circumstances.
In my experience, people who are NOT a good fit for mediation are people who have been in abusive relationships. When there’s an uneven balance of power, it is difficult to truly mediate a divorce. When one party is able to force the other to do what he wants, it’s difficult to negotiate a result that is truly advantageous for both parties. In fact, it can be a recipe for disaster.
If you and your husband are on relatively equal footing, mediation is a much more realistic option. The people who are the best candidates for mediation are the ones who have attended our Second Saturday monthly divorce seminar first. Our Second Saturday seminar, “What Every Virginia Woman Needs to Know About Divorce” is offered on the Second Saturday of the month in both Virginia Beach and Newport News, and also on the Third Tuesday of the month in Virginia Beach. Each seminar is taught by one of our licensed and experienced Virginia divorce attorneys, so that you can ask your questions about mediation and the entire overall divorce process in Virginia. The cost to attend is just $40 if you pre-register, and $50 at the door—and it’s the only seminar of its kind, designed to help women learn about divorce in Virginia.
For more information about mediation, how we can help you prepare for it, or to attend one of our monthly divorce seminars, give our office a call at (757) 425-5200.