Mediation versus Arbitration in Virginia Divorce

If you don’t really want to hire an attorney to handle your divorce case, you’re not alone. You’re definitely not alone! In fact, “I don’t really want to hire an attorney,” is something that we hear all the time. (It’s okay, we’re not easily offended.) Whether you’re worried about additional time or expense or difficulty and you’re afraid that, somehow, an attorney is going to exacerbate these difficulties, you’re probably starting to think about alternatives to traditional litigation. Specifically, you’re probably thinking about mediation and arbitration.
You’re probably wondering, too, what exactly the difference is between mediation and arbitration. And, should you choose to go one way or the other on this, what are the advantages and disadvantages? Are there things that you should know about working with an attorney and the advantages you might be giving up by going a more non traditional route?
First and foremost, let’s start with the differences between mediation and arbitration. After all, it’s a good question!

Mediation: What is it?

Mediation happens (at least, in the divorce context) when a husband and a wife meet with a mediator to reach an agreement regarding how all of their assets and liabilities will be handled in divorce. Whether you work with an attorney or a mediator, if your divorce is going to be uncontested, the end goal is the same: a separation agreement.
It is a mediator’s job to help you and your husband reach an agreement. A mediator, though, is not an attorney, and a mediator doesn’t have the same responsibilities to you as an attorney would. It is not a mediator’s job, for example, to educate you about the law, to help advocate for you, to advise you whether a particular agreement is a good one (or, on the other hand, whether you might do better to go to court on a specific issue)—it is simply the mediator’s job to get the two of you to agree.
Ultimately, though, you attempt mediation, but you aren’t required to reach a resolution. At any time during the process, you can get up and leave the table, and refuse to continue attempting to negotiate. No one is going to be able to force you to agree to anything (though it may feel very high pressure all the same).
There are definitely advantages and disadvantages to mediation, as you might well expect. As far as advantages are concerned, it is generally cheaper than hiring an attorney, if not only because you and your husband can share one mediator (it doesn’t work that way with attorneys because we have to zealously represent our client’s best interests, and we can’t do that for two people with competing interests). On the other hand, though, there’s no one advocating for you, no one there to help educate you, and no one with experience in court defending against bad agreements. That may not seem like a big deal to you now, but it is.
A big part of saving money is also centered on saving money later on down the road. After all, how much money have you “saved” if you get divorced, only to find that your separation agreement is ambiguous and you have to go to court to argue over and over again about what it was supposed to mean? You want to know that the person drafting your agreement is prepared to put in provisions that will really protect you.

Arbitration: What is it?

We don’t see arbitration all that often in divorce cases, but sometimes it happens. In arbitration, you go through a mediation-like process, where you and your husband negotiate results. However, at the end of the day, if you can’t reach a decision on a particular issue, it’s up to the arbitrator to make a legally binding decision for you.
An arbitrator is like a judge; sometimes, an arbitrator is a judge. People don’t participate in mediation unless they’ve specifically elected to participate and, in so doing, sign a contract agreeing to be bound by the terms of the arbitration. There’s no getting up and walking away if things aren’t going the way you hoped they’d go; you have to see this thing through, and then, like it or not, deal with the consequences.
Again, an advantage is that you could save money over working with an attorney (two attorneys, if your husband has one) on your case. Another advantage is that you know a result will be reached regardless, so you’re not wasting your time in fruitless negotiations. At the same time, though, arbitration is risky because you’re giving up control to someone else to make decisions. (And, after all, isn’t that what makes going to court so scary?)
Sometimes, people going into arbitration have lawyers with them; it’s certainly possible that you would. But, then, that probably wouldn’t save as much money (of course, over going to trial, it probably would save a fair bit). If you opt not to have an attorney, though, you may run into many of the same problems you’d have if you went to court on your own. Articulating your arguments and making points may be difficult, especially if you’re not well versed in the law.

Mediation and Arbitration: An option?

Ultimately, like anything else, it’s up to you. One of the nicest things about divorce (is that a contradiction?) is that you have a lot of freedom to determine your goals and how to achieve them. As far as the ends go, things often look the same—but the means can be very, very different depending on the path that you choose to follow.
Mediation and arbitration can be good options, but you’ll want to make sure that you’re prepared ahead of time for whatever might come your way.
To the extent possible, you should prepare before you go to mediation and/or arbitration. You should talk to an attorney to get an idea of what to expect before you go in. Come in with ideas, with a range of possible scenarios, and with intelligent points to make regarding the issues that are most important to you. You should know what the bargaining points are, and what the law would automatically allow you, so that you don’t negotiate over something that the court would give you without argument. You should be prepared to have your agreement, if you see a mediator, reviewed by an attorney before you sign it; remember, once you sign it, there’s no going back. In arbitration, it might be worth talking to an attorney about whether or not it’d be worth your while to have an attorney there to represent you.
It’s good that you’re thinking about alternatives, especially if you’ve got goals that you’re hoping to achieve. Still, make sure you make an educated and informed decision. Regardless of whether you choose mediation, negotiation, litigation, or arbitration, it’s certainly up to you—just do your research first!
For more information, give our office a call at (757) 425-5200.

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