“Do you have a lawyer, or are you going with mediation?”
If you’re starting the divorce process (or the post-judgment process), you may have heard that question. But if you’re just starting out, or if you’re unsure whether the issues in your case support one or the other, you may need to evaluate the differences between the two options.
Whether you hire a mediator or use a divorce attorney, the end goal is the same: to create a mutually agreeable divorce settlement or post-judgment agreement and complete your matter.
But the specifics of your settlement—and the process of reaching it—can differ significantly depending on which route you and your soon-to-be ex choose to take.
Divorce mediation is an alternative dispute resolution (ADR) process in which a neutral third party—the mediator—facilitates negotiation between both parties to help them come to a mutual agreement about issues relating to their divorce: asset division, child support, parenting time, alimony, and more.
A divorce attorney is hired to represent just one party and advocate for them, meaning both you and your ex can have separate legal representation. In many cases, most or all of the communication and negotiation happen between the lawyers, as opposed to the divorcing couple.
Yes, attorneys can be mediators (and many are!).
But while some attorneys are trained mediators, mediators do not act as lawyers in a representative capacity.
Because these are two separate roles, it’s important to include an experienced divorce attorney in the process. While they can’t advocate for either side during the mediation process, a mediator who is also an attorney can help you avoid the expense of a trial and keep divorce proceedings as low-conflict as possible, while also ensuring that your agreements are as fair and mutually beneficial as possible.
That said, an attorney can still participate in the mediation process if they are acting as an advocate for one of the parties, rather than serving as the mediator for both parties.
There are three main differences between divorce mediators and divorce attorneys—fees, training, and responsibilities.
There are no regulations or licensing standards governing who can become a mediator in private practice. While many mediators attend trainings or have certain certifications, anyone can advertise themselves as a mediator. There is also mandatory training for mediators who appear on the court roster, along with optional private training for mediators who voluntarily choose to continue advancing their skills.
As a result, there may be huge variations in style, approach, process and quality among mediators.
By contrast, attorneys go through rigorous training and vetting processes. In addition to law school, lawyers must pass an exam and be admitted to their state bar association before they’re allowed to practice.
Mediators don’t take sides or try to help anyone “win.” Rather, they focus on creating an open dialogue to help each party make decisions that are in everyone’s best interest (this is especially true if there are children involved). Note, though, that mediators are not allowed to give legal advice to either party.
Unlike mediators, attorneys are legally and ethically required to solely represent the interests of their client. As officers of the court, they can (and should) provide legal advice to their clients.
Mediation is often thought of as the more affordable alternative to litigation, which makes it particularly appealing for those with tighter budgets.
While many people think involving lawyers increases overall costs, pairing an attorney and a mediator—or working with an attorney who is a court-approved mediator—can be well worth the investment. With experienced professionals on your side, you’re more likely to get the results you prefer while also avoiding unnecessary delays throughout the process—and ultimately, saving costs in the long run.
Divorce proceedings aren’t “one-size-fits-all,” and whether a mediator or attorney is right for you depends on the facts of your situation. If you’re unsure as to which option might be suitable for your situation, consider the following factors.
(Keep in mind that, when it comes to working with either a mediator or an attorney, you don’t necessarily have to choose one or the other.
While certain situations lend themselves to support from mediators or attorneys, you may find that working with both a mediator and an attorney can help you better meet your needs during your divorce.)
Divorce mediation might be suited to your needs if you and your former partner both want to:
This doesn’t mean that mediation only works for amicable divorces. Mediation can still be worth it even if there are hurt feelings, sources of unresolved anger, or fundamental disagreements between the parties.
Mediators can also work with you even when you’re in the process of litigating your divorce. Many couples successfully use mediation to resolve specific issues, such as parenting time arrangements, even as they proceed through the courts.
Mediators offer valuable skills for resolving family law matters. They help defuse emotionally challenging situations and work towards productive solutions with clients.
That being said, there are specific circumstances where hiring a divorce lawyer is especially important:
In short, in cases where your ex may be unreliable, untrustworthy, or unsafe, having a lawyer advocating for you may be the best way to protect yourself.
Even if you decide to go through mediation without a lawyer by your side in the process, though, it’s still a good idea to hire an attorney to review your settlement agreement.
Divorce settlement agreements are legally binding documents, and a lawyer can help you identify and resolve issues that may pop up years after a divorce is finalized. They can also point out areas where you aren’t being treated equitably and help you advocate for yourself effectively.
-All text and illustrations are copyright © 2014 by Kilmann Diagnostics. All rights reserved.In previous blogs, I've examined such inner reflections as who determines your self-worth (you or others) and...By Ralph Kilmann