Counseled Mediation™

For couples going through separation and divorce, attorney Blanton Massey developed Counseled Mediation™, which combines the best of the mediation process and the collaborative law process.

What is the Counseled Mediation™ Process?

Virginia Code Section 8.01-581.21 states that mediation is “a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution of their dispute.” Virginia Mediation’s clients sometimes consult with financial planners and lawyers between mediation sessions.

In the Counseled Mediation™ process, a financial planner and the parties’ lawyers are more integrated into the mediation process. There may even be a licensed professional (mental health) counselor involved where emotions are high, such as when custody of children is at stake. Essentially, Counseled Mediation™ is just like any other mediation process with the addition of getting the written commitment of the lawyers to cooperate with the mediator and to act as advisor and coach to their clients in a more involved way than they are used to serving.

What is Collaborative Law?

Collaborative law or collaborative divorce is a negotiation process that requires both parties to hire lawyers to be involved in all negotiation sessions and to be cooperative and reasonable, with full disclosure of facts and a focus on settlement by requiring them to contractually agree that they are only hired to participate in settlement negotiations and that they won’t litigate the case. If the case isn’t settled, the clients must hire new lawyers for litigation. No mediator is involved to facilitate the interaction of the two lawyers who are always involved and present in every negotiation session!

How is Counseled Mediation™ Different from Collaborative Law Divorce

Counseled Mediation™ is recommended when the parties would like their lawyers readily available for legal advice and coaching between the mediation sessions, but don’t want the lawyers in control of the negotiations. They want the mediator to act as the process coordinator and facilitator of the parties own negotiation efforts. They want the mediator to keep the lawyers, as and when needed, to be informed, focused and transparent. In this process the parties have their lawyers sign the parties’ agreement to mediate to signify the lawyers’ agreement to cooperate with the mediator, but the Counseled Mediation™ process doesn’t require the lawyers to be fired if the parties don’t settle in mediation. (However, having the lawyers contractually agree that they can’t handle the parties litigated divorce if they don’t settle in mediation assures their total commitment to the mediation process and settlement efforts is highly recommended.) Either way, the lawyers are only as involved as the parties deem necessary, thus keeping better control over the attorneys’ fees and reducing the delays caused by lawyers’ busy schedules.

When and how to shift to Counseled Mediation™

In Counseled Mediation™, the lawyers can be consulted by the parties and/or mediator when the parties are at impasse (fixated, stuck), when there’s a power imbalance, when the parties are far apart (proposals are outside a reasonable range of probabilities), when the parties can’t explain why his/her proposal is fair from a factual/legal standpoint, when there is ignorance or misunderstanding about the law or when the parties have been given conflicting advice. You can use this example of an amendment (addendum) to your contract for legal services to shift to Counseled Mediation™.

What are the Benefits of Counseled Mediation™?

Counseled Mediation™ incorporates the benefits of the collaborative law process, such as having readily available advice from lawyers, financial planners and licensed professional counselors, without requiring your lawyer, if you choose to hire one, to withdraw from the case if you don’t settle. The parties remain in control in any mediation process, including the Counseled Mediation™ process and can accomplish steps at home or skip them as they freely choose.

In conclusion, if it appears that your marriage is coming to an end, attend a one-hour no-obligation educational separation and divorce process orientation session with Virginia Mediation, in which all separation and/or divorce process options will be explained and discussed with you and/or your spouse.

Blanton Massey is a founding member of the Academy of Professional Family Mediators and holds the designations of Advanced Practitioner and Consultant.