The Trend Towards Court-Ordered No-Cost Mediation
Mediation has long been a popular alternative to drawn-out, costly and emotional contested litigation in Virginia family law cases. However, mediation has up until recently most often been an avenue that the parties themselves must proactively elect to participate in. This has generally required that (a) the attorneys involved in the case be proactive about discussing and promoting mediation with their clients, (b) both parties in the case be receptive to the discussion and open to a form of alternative dispute resolution that occurs outside a courtroom, and (c) a mutually agreed upon mediator be selected and a mediation date be set prior to the final trial date in the case.
Recently, however, some courts in Virginia have begun making mediation a mandatory part of the litigation process for some cases, with the goal that the parties will be able to come to a mutually agreed upon resolution in their case prior to intervention by a judge. In doing so, these courts have created a cost-free way for parties to participate in this type of alternative dispute resolution while simultaneously reducing the back log on the court docket.
Two examples of this practice are (1) the Mediation Program in the Fairfax County Juvenile and Domestic Relations District Court and (2) the Virginia Judicial Settlement Conference Program that some courts are utilizing to encourage mediation prior to trial.
Fairfax JDRDC Mediation Program
The Fairfax Juvenile and Domestic Relations District Court (“JDRDC”) has created a formal JDRDC Mediation Program, staffed by neutral mediators, all of whom have been certified by the Supreme Court of Virginia. The program provides free mediation services to help parties resolve their disputes by mutual agreement prior to having them heard by a judge. Parties actively engaged in custody, visitation, and/or support cases in the Fairfax JDRDC are now being ordered by judges to participate in the program, in cases where it is deemed appropriate. Generally speaking, the Fairfax JDRDC does not deem it appropriate to refer cases to the program that involve protective orders or allegations of domestic violence.
In order to participate in the JDRDC Mediation Program, the parties must have an active petition pending before the Fairfax JDRDC for custody, visitation and/or support and a judge must enter a court order referring the parties to participate in the program. Once the parties have been referred to the JDRDC Mediation Program, they will go through an initial screening process to collect relevant intake information and to ensure that their matter is, in fact, appropriate for mediation. Once the matter has been approved for mediation, a mediation date will be set and one of the program’s neutral mediators will be assigned to the case to conduct the mediation.
On the day of the mediation, the mediator will describe the process to the parties, the confidential nature of mediation, as well as his or her role in the process. Parties should be aware going into mediation that the mediator is not permitted to provide either party with legal advice, as the mediator is intended to function as an entirely neutral third-party and thus does not represent either side. The parties will then be given an Agreement to Mediate Form to sign prior to mediation commencing.
During mediation, the goal is that the mediator will be able to assist the parties in viewing situations objectively and/or from the other party’s point of view, talking through issues calmly and respectfully and hopefully ultimately reaching mutually agreed upon resolutions to the issues in that particular case. Each party, during the course of the mediation, is permitted to request a “caucus” with the mediator, as needed. This caucus is an opportunity for the party to speak privately with the mediator and discuss any questions or concerns the party may have. The mediator is required to keep all discussions had during the caucus confidential, unless given permission to share that information with the other party.
When participating in the JDRDC Mediation Program, parties who are represented by counsel should be aware that their attorney may or may not be permitted to participate in the mediation session. The decision as to whether to allow attorneys to participate is entirely up to the mediator. Often times mediators will only allow attorneys to be present if both parties are represented by counsel, in order to avoid what they perceive to be a power imbalance during mediation. As such, if you are represented by counsel and your attorney is not permitted to attend mediation, keep in mind that you always have the right to have your attorney available by phone during mediation should you need to call him or her with any questions or concerns. Additionally, if you are represented by counsel, and your attorney is not permitted to attend mediation, it is always best to have your attorney review any agreement drafted by the mediator prior to you signing it. That way, your attorney can discuss the agreement with you and make sure it is in your best interests and that you understand all of its terms and obligations.
If an agreement is reached and signed at mediation and that agreement resolves all the issues before the court, it will be presented to the judge for review, approval and incorporation into a fully enforceable court order. Often this will resolve the case in its entirety and the parties will not need to attend their next scheduled court hearing. However, always confirm with the court that your hearing has been removed from the docket prior to missing any scheduled court hearings. If an agreement is not reached and signed at mediation, the parties must attend their next scheduled court hearing, at which the judge will decide how the case will proceed.
Judicial Settlement Conference Program
The Virginia Judicial Settlement Conference Program is another cost-free mediation program that is being utilized by some circuit courts to compel settlement prior to trial. The Judicial Settlement Conference Program is a state-wide program that was started in November 2003, through which retired circuit court judges serve as neutral mediators to assist parties in reaching a resolution to their case prior to trial. The judges who work with the program are all trained in both mediation skills and well as judicial settlement techniques. While participation in the Judicial Settlement Conference Program is not always compulsory in family law cases in circuit court, some courts will order litigants to schedule a judicial settlement conference prior to their trial date.
Unlike with private mediation, parties who are ordered by a judge to participate in the Judicial Settlement Conference Program will be given the opportunity to mediate their case with the assistance of a retired circuit court judge acting as their neutral mediator. In addition, parties participating in the program will not have to pay any of the costs normally associated with private mediation. In order to participate in the program, parties need to be compelled by the circuit court to participate in the program, and then they need to contact one of the listed program judges in their area to confirm his or her availability for mediation.
While no-cost court-ordered mediation is becoming a more popular tool used by juvenile and domestic relations courts and circuit courts alike, it is still not universally utilized in Virginia nor is it always appropriate for all cases. Nonetheless, for parties who have not been ordered by a court to participate in such a program, or who are not yet engaged in active litigation, private mediation is still a great option to attempt resolution outside a courtroom. Not only does mediation allow parties to be the decision makers in their own case, coming to a mutually agreed upon resolution, but it often also costs far less than contested litigation in court.
If you are interested in discussing what mediation options are available to you, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.