Guide to Divorce Mediation in Virginia

More and more couples are turning to mediation as a way to reduce the cost and conflict involved in typical divorces. Here's what you need to know about the mediation process in Virginia divorces.

When Can You Use Divorce Mediation in Virginia?

You can use mediation before you file for divorce, once your legal case is underway, and even after your divorce is final.

Mediation Before Filing for Divorce

In order to file for an uncontested divorce in Virginia, you and your spouse must have a separation agreement (sometimes called a "property settlement agreement") that spells out how you will deal with the important issues involved in ending your marriage, including:

• dividing your marital property and debts
• alimony (called "spousal support" in Virginia), and
• if you have minor children, child custody, visitation, and child support.

When you're having trouble resolving your differences on these issues, you can turn to a mediator for help. Then, if the mediation leads to a complete agreement at this stage of the process, you can probably complete an uncontested divorce without the expense of hiring lawyers to represent you—and you may get help with the divorce paperwork by filing for divorce online. Also, couples who can work out an early agreement in mediation usually experience less conflict in their divorces (and afterwards).

Mediation During the Divorce

Even if you haven't been able to reach a separation agreement before filing for divorce in Virginia, you can still turn to mediation at any point before your case goes to trial. In fact, if you have contested issues in your case—especially disputes about your children—you might be required to participate in mediation, or at least to attend a session to learn about whether mediation might help in your situation (more on that below).

Mediation of Post-Divorce Disputes

Unfortunately, ending your marriage doesn't always put an end to fights with your ex—especially when you're co-parenting. These disputes typically come up when one spouse wants to move away with the children or wants to change the amount of spousal support or child support—and they can lead to lengthy and costly legal battles. But you might be able to avoid that result by mediating your disagreements.

Any court requirements for mediation of custody disputes during a divorce may also apply to disagreements about a formal request to modify custody orders in the final divorce decree.

Is Divorce Mediation Required in Virginia?

In Virginia cases involving disputes over child custody and visitation, judges must refer the parents to an orientation session with a mediator unless it's inappropriate under the circumstances. Generally, this orientation won't be considered appropriate when there's a family history of abuse (more on that below). (Va. Code § 20-124.4 (2021).)

During the orientation session, the parents will learn about the mediation process and, with the help of the mediator, evaluate whether it would help in their situation. The parents can then decide whether they want to continue with actual mediation.

Despite the lack of mandatory divorce mediation under state law, you still might be required to mediate at least some of the issues in your case, depending on the rules in your county. For example:

• Under local court rules in Fairfax County, judges will order the parents to participate in mediation in all contested divorce cases with custody or visitation issues. The only exceptions are when there's a good reason that mediation would be inappropriate, such as when there are accusations of domestic violence or an active protective order. Parents may either use the court's mediation program or choose their own private mediator. (Va. Local Rules of Court, Fairfax CCR-H-73 (2021).)
• In some counties, judges will order couples with contested divorces to participate in the Virginia Judicial Settlement Conference Program. When that happens, the spouses will have the opportunity to mediate their case with a retired circuit court judge acting as the mediator.

Whenever you have a case in Virginia involving disputes over child custody, visitation, or child support, you'll have to attend a parent education program. If possible, Virginia law requires that you and your spouse attend this program before participating in mediation. (Va. Code §§ 16.1-278.1, 20-103 (2021).)

How Does Divorce Mediation Work in Virginia?

In divorce mediation, you and your spouse will meet with a trained, neutral professional in an informal setting (or remotely, if you choose online mediation). The mediator won't make any decisions for you or force you to agree to anything. Instead, the mediator acts as a kind of guide, helping you communicate and work through your disagreements.

The mediation process usually starts with an orientation session. This may happen separately—as in a court-ordered orientation session (described above) or as part of a mediation provider's intake process. Otherwise, the orientation may simply happen at the beginning of the actual mediation.

Before the first mediation session, you should track down all of the relevant information and documents you might need, depending on the issues that you're mediating. For instance, if you and your spouse disagree about whether some assets are marital or separate property, you should gather the financial records related to those assets. Whenever support is an issue, you'll need proof of your income and other financial documentation. Some private mediators or mediation services will ask for this information as part of the intake process.

After the orientation, there are similar stages in most divorce mediation:

• identifying the issues that you need to resolve
• exploring possible solutions to those disputes, and
• negotiating an agreement.

If you've hired an attorney to represent you in your divorce, your lawyer can help you prepare for mediation and coach you through the negotiations.

Is Mediation Confidential?

Under Virginia law, all mediation is confidential. You, your spouse, or the mediator may not share or disclose anything you say or any documents you provide during the mediation process (including during screening and intake). There are a few exceptions to this confidentiality rule, including:

• the written and signed separation agreement that results from the mediation
• documents that weren't prepared specifically for mediation and must be disclosed as part of the legal evidence-gathering process known as "discovery," and
• threats to injure someone.

(Va. Code § 8.01-581.22 (2021).)

How Much Does Divorce Mediation Cost in Virginia?

In Virginia, you might be able to use a court mediation program that's free for some couples with contested divorce cases. For example, the court's program in Fairfax County is free, as is mediation through the state's Judicial Settlement Conference Program.

Also, you won't have to pay when you've been ordered to attend a mediation orientation session. If you decide to continue with mediation after the orientation, however, you'll pay the private mediator's regular rate unless your county court offers a no-cost or low-cost option.

If you want a mediator's help to work out an agreement before you file for uncontested divorce in Virginia, or if you choose a private mediator while your case is in the court system, the cost of divorce mediation will depend on several factors, including:

• the number and complexity of the issues you need to resolve
• whether you and your spouse are able to put aside any hostility and work together to solve your disputes, and
• the mediator's hourly or package rate.

Private mediators' fees vary depending on their expertise, certification, training, and location. Mediators who are also attorneys typically charge about $250-$500 an hour, while those who aren't attorneys usually charge hourly rates between $100 and $350. Mediation services generally charge a flat fee for a certain number of sessions, although they'll often allow extra time for an additional fee. They might also add charges for extra services like helping you prepare and file the paperwork to complete your divorce.

The total bills for mediation vary widely, but they typically range from about $3,000 to $8,000. If that gives you sticker shock, it may help to know that most couples split the bill 50-50. In contrast, the cost of divorce is almost always a lot more than that when you and your spouse each have to hire lawyers and go to trial. Also, with mediation, you have more say over the outcome of your divorce than when you have to rely on a judge to make the decisions for you.

Is Divorce Mediation Appropriate in Cases Involving Domestic Abuse?

If there's ongoing domestic violence or abuse in your marriage, mediation will almost always be inappropriate. That's because mediation won't work properly unless both spouses have the ability to express themselves and negotiate freely without worrying about being bullied or abused any further. There are also other situations when mediation might not be a good idea, such as when:

• one spouse has significantly more power or control over the other
• a spouse has a substance abuse disorder that's not being treated
• one spouse has taken steps to hide assets, or
• one or both spouses have been accused of child abuse.

If you want to go ahead with divorce mediation even though you've experienced past abuse in your marriage, you can request certain measures to protect your safety, including having the mediator meet separately with you and your spouse (sometimes known as "shuttle mediation").

What Happens After Divorce Mediation?

If you and your spouse manage to reach an agreement during mediation, the mediator will typically prepare a written document that reflects that agreement. Some mediators (especially those who are also lawyers) may also help prepare a formal separation agreement. When you can, it's a good idea to have a lawyer review the agreement to make sure that it protects all of your legal rights. This is especially important if you and your spouse have complex assets (like a family business or retirement accounts).

Finalizing Your Virginia Divorce Following Mediation

When you've arrived at a separation agreement through mediation before filing for divorce, you may attach the signed agreement and a proposed final divorce decree to your complaint. Otherwise, you'll submit these documents to the court as soon as you have them.

In Virginia, you might be able to finalize your divorce without a court hearing based on your agreement and an affidavit. Among other things, the affidavit must verify that you meet Virginia's residency requirements for divorce, and that you and your spouse have lived separately and apart for at least a year (or six months if you don't have minor children). (Va. Code § 20-106 (2021).)

What If You Don't Reach an Agreement in Mediation?

Even if a judge has ordered you to participate in mediation, you are not required to agree to anything during the process. If you and your spouse don't voluntarily sign a separation agreement—whether before filing for divorce or while your case is in the court system—you'll have to go to trial, present evidence, and have a judge make decisions about any unresolved issues.