Mediation vs. collaborative divorce in Northern Virginia

The four main paths

Most divorcing couples in Northern Virginia end up on one of four paths. They differ in who is in the room, how much control you keep, and what happens when talks break down.

Mediation

Virginia law defines mediation as a process in which a mediator facilitates communication between the parties, and a mediator as an impartial third party chosen by agreement of the parties. The mediator does not decide anything. You and your spouse do. The mediator does not represent either of you and does not give legal advice.

Mediation can be combined with outside attorneys. Some people use a consulting attorney to review options before sessions, or to review the written agreement before signing. That arrangement keeps the cost of full representation down while still giving each spouse independent advice. See do I need a lawyer for divorce mediation?

Collaborative divorce

Virginia has a collaborative law statute. It adopted a Uniform Collaborative Law Act in Title 20, Chapter 11 of the Code of Virginia, which applies to participation agreements signed on or after July 1, 2021 (§ 20-169).

Here is what the Act says about the process:

• Participation agreement. The process begins when the parties sign a written agreement that states their intent to resolve the matter collaboratively, describes its scope, and names each party's collaborative lawyer (§ 20-170, § 20-171).
• Disqualification clause. A collaborative lawyer, and generally lawyers in the same firm, are disqualified from representing a party before a court in a related proceeding (§ 20-175). There are limited exceptions, such as asking a court to approve a settlement or seeking emergency protection.
• Voluntary. A court cannot order a party into the process over objection, and either party can end it, with or without cause (§ 20-171).
• Disclosures first. Before you sign, the lawyer must explain the benefits and risks compared with other options, and that the lawyers generally cannot later litigate the matter (§ 20-179).
• Safety screening. Lawyers must screen for a history of family abuse and keep checking during the process (§ 20-180).
• Privilege. Collaborative communications are privileged and not admissible in evidence, with narrow exceptions (§ 20-182 to § 20-184).

Some collaborative cases add financial or mental health professionals alongside the attorneys. The Collaborative Professionals of Northern Virginia (CPNV) describes itself as a practice group of collaboratively trained attorneys, mental health professionals and financial professionals. Olive Branch has no referral arrangement with CPNV or any other group, and takes or pays no referral fees. If you want to explore the collaborative route, ask a family attorney who practices collaboratively.

Attorney negotiation

Each spouse hires an attorney. The attorneys exchange information and proposals, often by letter, phone or in four-way meetings, and try to settle without a hearing. Either spouse can still go to court if talks fail, and the same attorneys can go with you.

Litigation

One or both spouses file in court, and a judge decides disputed issues after a hearing or trial, applying laws such as the property factors in § 20-107.3 and the custody factors in § 20-124.3.

Side-by-side comparison

We left out dollar ranges for the other three paths on purpose. Costs depend on the attorneys, the complexity of the case and how much the spouses disagree, and we have no reliable published source for typical totals. Ask for a written fee agreement and estimate from any professional you consider.

Questions to ask yourself

• Can the two of us sit in a room with a neutral person and talk, even if it is hard?
• Do I want my own attorney with me in every meeting, or reviewing documents in the background?
• Is there any history of abuse or control? If so, tell every professional you speak with. Collaborative lawyers must screen for it under the Act (§ 20-180), and a mediator needs to know too. Ask a Virginia-licensed attorney about safety options in any path.
• Is the main issue money, children or both?
• Does one spouse control the financial information? Full disclosure is essential in every path.

How mediation helps

Mediation keeps decisions with you and your spouse and is usually the lightest process to start. It is also flexible. You can begin in mediation, bring in consulting attorneys for review, and move to another path if you need to. Sara M. Khan, J.D., is a private mediator, not an attorney, and does not give legal advice. Olive Branch produces a Memorandum of Understanding, and strongly encourages each spouse to have independent counsel review it. A licensed attorney prepares the final court documents.

Note that Olive Branch is a private practice and is not Virginia court-certified. If a judge refers your case to mediation, it goes to a certified mediator. For privately chosen mediation, see Fairfax County, Arlington and Alexandria, Loudoun or Prince William. Related guides: how long divorce takes, separation agreement checklist and who keeps the house.

This guide is general information, not legal advice. Olive Branch Mediation is a private mediation practice, not a law firm. For advice about your situation, talk with a Virginia-licensed attorney.