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Virginia Mediation

As a final note on the "process" of resolving the usually more difficult/dynamic issues, it should be explained that, at least in the relatively-rare case where, despite their personal marital differences, a couple is very civil about the situation, and apparently both spouses are desirous of being very fair, reasonable, aboveboard, etc., about the process of resolving these matters -- it is possible to settle these matters by "mediation."

In "divorce mediation," a lawyer attempts to serve as an impartial source of information and assistance to and for both spouses, in an effort to help them, in effect, draft their own Separation and Property Settlement Agreement. Despite the terminology, a lawyer cannot represent either or both of the spouses in the actual divorce case. As noted above, though, if and when the couple reaches the "nirvana" of binding "signature on the dotted line," the divorce process itself should then be a relatively simple, pro forma matter (when the required period of physical separation has elapsed) -- as long, that is, as neither spouse then attempts to challenge the validity of the agreement.

Because a single lawyer cannot even give legal "advice" to (let alone "represent") two people with such directly conflicting interests in the course of negotiation of such important matters; and in view of the possibility that one spouse who later becomes unhappy with the terms of an Agreement reached through mediation (especially if that spouse did not also have his or her own independent counsel participating in the process) might raise the defense to validity of the Agreement of "undue influence" -- renders the process of "divorce mediation" (especially if only a single lawyer is involved) -- rather cumbersome and tricky -if you want the Agreement "to be worth the paper it's written on," divorce mediation must be carefully undertaken.

In addition, to some extent, the usual rules of "confidentiality" of communications between lawyer and client are in effect turned on end in the mediation process. For example, where both spouses are present during a particular conversation, obviously it is not "confidential" between them. And a lawyer/mediator can hardly be said to be acting appropriately as an "impartial" mediator if he or she keeps a communication from one spouse hidden from the other during the course of mediation (although some mediators often use the approach of "caucusing" separately with each spouse). Despite the fact that a Virginia statutory provision now usually "seals the lips" and files of the mediator, if the attempt at mediation should fail(13) -- if mediation is to succeed, should not the principle of full and open disclosure between the spouses and the lawyer/mediator be the operative rule?

It is also not appropriate for a lawyer who has consulted with both spouses in an attempt at mediation subsequently to represent one against the other, either through completion of the process of negotiating an Agreement, or later, if a dispute should arise regarding interpretation or enforcement of the Agreement (let alone regarding the validity of the Agreement). And, although it is ethically possible for a lawyer who has been consulted by one of the spouses for "independent representation" advice to assume the role of a mediator for both spouses (at least with sufficiently full disclosure of everything that was communicated during the "independent representation" consultations) -- our experience has been that the prior contact almost invariably causes insurmountable distrust of the lawyer/mediator by the other spouse, even where he or she initially agrees to see the lawyer together with his or her spouse, for attempted mediation.

You should also understand that the process of attempting to gain the trust and understanding of two spouses; the extra time involved in ensuring that all statements are couched in the form of "legal information," as opposed to direct "advice"; as well as the time involved in insuring that the process of mediation is appropriately conducted -- render the process of negotiation and drafting of a Separation and Property Settlement Agreement through mediation more expensive than in the "independent representation mode," where the other spouse is not represented by counsel; although mediation by a single lawyer usually does save significant costs when compared to a "battle between legal eagles."(14) However, where appropriately conducted, successful mediation can and should leave both spouses feeling more comfortable with the terms of the "Magna Carta" for the rest of their lives.

As a result of all of this, before deciding on whether to see a single lawyer for attempted mediation assistance together with your spouse, you should carefully consider whether or not your situation is apparently sufficiently civil for appropriately-conducted mediation to succeed. Are both of you apparently fully and openly disclosing what has been and is going on, both with respect to your personal differences, as well as with regard to financial and property matters? Are you entirely willing to let the chips fall where they may, if your spouse were to become sufficiently fully apprised of at least the type of "legal information" involved in this pamphlet or in these "articles"? And bear in mind that, if you have not yet been sufficiently fully "open" with your spouse, or apprised him or her of your desire to separate, if you should begin mediation do so prior to receiving "independent representation" advice and assistance, extremely deleterious effects could result, which (as a practical matter) may be difficult or virtually impossible to reverse "rip-offs" of Joint bank accounts) -- notwithstanding your laudable intentions.

13.Mediation should be distinguished from "binding arbitration. "In mediation, until and unless both spouses have signed the Agreement, it is not binding. In mediation, either spouse is free to back out of the process at any point up until that time; and the lawyer/mediator should not attempt to serve as a "private judge" of disputes between the spouses.

14.Please also bear in mind that, during mediation, either and both spouses are entitled to have whatever assistance they deem appropriate from independent counsel of their own respective choices; indeed, occasionally, when two lawyers seem to have reached an impasse, they refer their clients to a third lawyer, for mediation.


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Virginia is an equitable distribution state, which means if the spouses don't agree, the marital estate will be divided fairly but not necessarily equally. In dividing property the court considers the contributions, both "monetary and non-monetary," of each spouse, the duration of the marriage, the ages and conditions of each spouse, how marital property was acquired, the debts and liabilities of each spouse, tax consequences, dissipation, the "character of all marital property," and "other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award."
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