4.3 Referral to Mediation and Other Types of Alternative Dispute Resolution

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

4.3 REFERRAL TO MEDIATION AND OTHER TYPES OF ALTERNATIVE DISPUTE RESOLUTION

Alternative dispute resolution (ADR) encompasses a variety of different processes. Most lawyers are familiar with mediation, in which one or more impartial individuals assist the parties to develop a resolution to their dispute on a voluntary basis. Different ADR resources are available in different communities in Virginia. Mediation services are available in most juris-dictions. ⁷ Some jurisdictions also employ the services of "neutral case evalu-ators." Parties might also agree to present their case to an arbitrator.

Parties can voluntarily choose to use any of the ADR processes available to them. They need not be referred by the court. While several different types of ADR processes may be helpful to the parties in a family law dispute,

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mediation is the process lawyers most often recommend to their clients. When an agreement has not been reached through mediation, the parties may seek legal representation to resolve their dispute. An attorney who sometimes serves as a mediator or who practices law with another attorney who sometimes serves as a mediator should gather the information needed to avoid a conflict of interest. ⁸

A lawyer may wish to provide the client with a written introduction to the mediation process. The letter in Appendix 4-2 can be adapted to reflect different issues in an individual client's case. It also can be adapted to reflect the policies of the local courts concerning referral to mediation or other ADR processes. Some courts rarely make those referrals, while other courts might refer all cases involving child custody or visitation issues. Still other courts might refer all contested divorce cases.

If parties do not voluntarily choose to participate in an ADR process, the court may refer the parties to one. Pursuant to Rule 1:19 of the Rules of the Supreme Court of Virginia, the court may refer the parties to a settlement conference. ⁹ Additionally, the court is authorized to refer parties to an orientation session that is designed to help the parties learn whether their dispute might lend itself to resolution through one of the ADR processes. ¹⁰ When the court refers the parties to a dispute resolution orientation session, it does so in order to encourage the early settlement of the dispute through the use of procedures that facilitate (i) open communication between the parties about the issues in the dispute; (ii) full exploration of the...