Divorce 101: Getting Divorced in the Virgin Islands Part 3: Mediation
Welcome back to our Divorce 101 Blog Series! This is PART 3 in which we will discuss mediation. We will cover the following frequently asked questions: What is it? What does it look like? How does it work? Will it work for me? If you haven’t already, please check out Part 1: Eligibility and Requirements and Part 2: Filing for Divorce.
One of Attorney Evert’s legacies will certainly be her role in implementing mediation in the Virgin Islands Federal and Territorial Courts. As a full-time practicing attorney, Attorney Evert founded American Mediation Institute (AMI) in 1992. AMI implemented civil and family mediation training classes in the U.S. Virgin Islands for attorneys and skilled business people and petitioned the court to certify the mediators.
Almost all civil cases are now mediated before they proceed to trial, and more than 75% of all civil and family cases settle in mediation before trial, saving the parties time and money. Though she sold AMI in 1998, it continues to be the largest mediation company in the USVI. Attorney Evert is a certified civil and family mediator and frequently obtains desired results for her clients in mediation.
Mediation is not unique to family law cases. In divorce cases, mediation is an effective and efficient way to settle contested matters without having to step foot in the courtroom. In our jurisdiction, most family law cases are ordered by the Court to mediation before the Court will schedule a trial. Let’s break it down:
What is mediation?
During mediation, a third party, who is not your lawyer or your spouse's lawyer, helps the parties reach an agreement and settle the case. In order to settle a case in mediation, both you and your spouse will have to agree. Nobody can force a decision on you in mediation but rather you will negotiate and come to an agreement (or an impasse) together. Since the pandemic, most of our mediations take place via Zoom in which you will “appear” with your attorney and your spouse will appear with theirs. The mediator will speak to you together and separately as an unbiased third party to guide everyone toward a resolution. Unlike a court order, the mediator can not make you or your spouse do anything.
The most important part of mediation is that it is confidential. What you and your lawyer tell the mediator will not be told to your spouse. The mediator will ask you for permission to say certain things and the mediator will get your approval before going to speak with your spouse. What we say in mediation is also protected from disclosure to the Judge. We are not permitted and the Judge is not permitted to ask what happened and what was said in mediation. We can be flexible in mediation and create solutions that the Court simply cannot do. For this reason, mediation is often successful.
What if we don’t reach an agreement?
While it doesn’t happen often, if you do not agree on a resolution in mediation, the case will go to trial.
What if my spouse and I can’t agree on anything?
Oftentimes a client will say that their spouse "will never agree". Sometimes this is true but most often it is not and cases are settled. Mediation works because the mediator, an attorney who has trained specifically to become a mediator and is certified by the Court, knows how to get parties to reach an agreement through negotiation. The mediator knows how to ask insightful deep questions in private sessions and can usually help the party identify the issue and work on solutions that are workable for both parties.
How can I achieve my desired results through mediation?
The key to "winning" in mediation is to be prepared. At our firm, Attorney Evert will discuss strategy and goals at length with you. You will discuss what you need to resolve the case and what you want. Keep in mind that wants and needs are not necessarily the same.
How long will it take?
Divorce and custody mediations typically take a few hours or more depending on what needs to be discussed and how receptive the parties are to resolving the issues.
How much will it cost?
You and your spouse are each responsible for paying one-half of the mediator's fee. Mediators typically charge $400/hour with a two-hour minimum, which means the minimum amount you will pay to the mediator is $400. Your mediation could take several hours so it’s important to prepare thoroughly so that you do not waste time.
Keep in mind the average rate for family law attorneys in the Virgin Islands is about $400-$500 for in-office work and $500-$700 per hour for time in the courtroom. Trials and hearings require even more preparation and correspondence between you and your attorney which will add up.
Here is an example: You and your spouse can’t agree on the division of real and personal property or a calendar for shared physical custody on your own but won’t go to mediation because you’ll “never agree”. If your attorney is any good, they will spend at least a few hours preparing themself, you, and your witnesses for trial. This includes “prepping” or preparing witnesses by going over questions and having the witness answer the questions. Even if hearing or trial preparation only takes 10 hours, that’s already $4,000-$6,000 in pretrial preparation time, and that does not include in-court time. If the hearing or trial takes an additional 5 hours (and this is a very conservative estimate), you’re looking at a total cost upwards of $8,500 that both you and your spouse will have to pay to get to trial.
In sum, resolving issues in mediation can save you thousands of dollars, tons of time, and lots of stress.
