Mediation, which is becoming increasingly common in divorce cases, offers you an opportunity to resolve key issues quickly and at a lower cost. Oftentimes, this kind of negotiation will lead to a faster resolution of your case and you do not have to worry about a judgment going against you.  Additionally, many people find the collaborative nature of mediation more fulfilling than the adversarial nature of court proceedings.  While some states require mediation for divorce cases, in Virginia it depends on which court has jurisdiction over your divorce.   In Williamsburg / James City County, for example, mediation is required before a divorce or custody hearing.  In Richmond, mediation is encouraged, but ultimately optional. However, if you believe you may be able to find common ground with your former spouse mediation can be a great idea, regardless of whether it is required. 

Mediation is not just used in divorce cases; it is also used in cases where there are contract disputes, or conflicts between an employer and employee.  This just shows that mediation is a versatile tool for resolving disputes.  It can be particularly useful for divorce cases due to the emotional nature of the conflict involved.  However, in order for mediation to be successful, you need to decide where you are willing to compromise and what is non-negotiable.

An Overview of the Process

Generally each mediation session will begin with a joint session.  Both parties will come together with the mediator and each side will have the opportunity to give a brief opening statement about what they hope to accomplish through mediation.  Next, the mediator will speak to each side individually so that they can speak in confidence.  At this time the parties are separated and the mediator goes back and forth between them practicing what has been termed “shuttle diplomacy.”  Essentially the mediator is serving as a messenger communicating the wants, needs, and concerns from one side to the other.  Throughout this process the two sides may come together again in more joint sessions if the mediator feels they would be productive.  The hope is that the mediator will ultimately be able to guide both sides towards a mutually agreeable resolution.  In a perfect world both sides would walk out of the building happy with the deal reached. However, the sign of a good and fair deal is usually that neither side is happy, but both sides can live with it.  Now that you have the basics as to what constitutes mediation, here are five tips if you choose this path adopted from Veronica Dagher’s Wall Street Journal article, “Five Ways to Get a Better Deal in Mediation.

Mediation How Mediators Address Non-Negotiable Issues

Mediators see their role as pushing reluctant parties toward agreement. They will attack non-negotiable issues at different times and from different angles, sometimes pairing them with negotiable issues to see if there is any room for compromise. You and your attorney need to decide how you will address the mediator’s efforts to push you into discussing your non-negotiable issues. Often, the easiest approach is simply to note that the point is non-negotiable and try to move the discussion back to a topic where you are willing to compromise. In the end, in order to get the result you want on non-negotiable issues, you will need to convince the mediator that you are not willing to discuss those issues.

Flexibility Is Key

At the same time, you need to be flexible. If too many issues are non-negotiable, then your spouse will have no incentive to negotiate with you. Save the non-negotiable position for those issues that are critical to you and show your willingness to compromise on others. Your attorney can help you sort through the issues and identify those that are truly non-negotiable.

1. Prepare emotionally

Because mediation is more informal than court proceedings people tend to speak more freely.  That can lead to your former spouse saying things that are inaccurate or mean spirited.  It might be a good idea to consider seeing a therapist prior to mediation.  The benefit is two-fold; you will remain calm during the process and have a better idea about how to effectively express what you are feeling.  Hiring a lawyer before the mediation is also a good idea because it can be hard to remain rational in such a highly charged emotional setting.  An attorney also has the experience to walk you through each stage of the mediation.


2. Have records

In court the lawyer that is the most prepared generally wins and the same is true for individuals participating in mediation.  Saying something can have an effect, but having the records to support it will make the statement much more powerful.  The records can be used to support what you are asking for or to dispute something brought up by your former spouse.  Having the records on hand also makes life easier for the mediator. 


3. Choose the mediator carefully

In a perfect world all mediators would be impartial and great at their jobs, but we are all human and so are mediators.  That is why it is important to choose the right mediator for your situation.  Your Smith Strong attorney has the experience to recommend a mediator that will give you the best chance at a successful mediation.


4. Show empathy

The right signal of empathy at the right moment can have a profound effect on your mediation.  Oftentimes the conflict is about more than just money and perhaps all you or your former spouse wants to hear is a thank you, or an apology.  Empathy at the appropriate time can be the difference between mediation that ends in success or fails.  At the same time it is important to know when a disclosure is inappropriate and could be harmful to your case.  Your Smith Strong attorney can advise you about the proper level of disclosure for your situation.


5. Have a backup plan

You have to go in knowing that mediation will not always work and that at some point you may need to walk away.  Knowing when to walk away from mediation can be just as important as any other mediation skill.  Not only do you need to know when to give up on mediation, but you should also have a backup plan in place.  Having a backup plan gives you more confidence in the event that it seems like mediation will fail.  Usually the backup plan to mediation will require going to court.  This is an area where a Smith Strong attorney can help, because we are not afraid of taking a case to court when we need to.

The attorneys of Smith Strong, PLC are experienced in all facets of divorce mediations.  Our attorneys can advise you about whether mediation is the right path for you and if so what you need to do to prepare.   Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg). 


Veronica Dagher, Wall Street JournalFive Ways to Get a Better Deal in Mediation.