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Getting a Divorce? Mediate, Don’t Litigate.

Getting a divorce? You have options that will allow you to pick the right people to help you do that, but there’s no one size fits all choice.

Mediate, Don’t Litigate is a great concept that has fast become the popular trend in divorce.  More so now, people like to say, “I want to get divorced by a mediator.”  But mediation on its own cannot get you divorced.  A mediator helps you negotiate a settlement, but unless the mediator is also an attorney or a Legal Document Assistant, you’ll need a Legal Document Assistant (specifically licensed and bonded paralegal) or a lawyer to actually get the divorce documented at the courthouse for you in order to receive a divorce decree.  

The Players:

1.  Attorneys:  As much as people fear attorneys, both financially and out of fear that attorneys will do things that will cause irreparable harm, they can and should be used for legal information and counsel.

2. Legal Document Assistants (specially licensed Paralegals):  These people can get you divorced by filing all the correct court forms, in the order that they need to be filed, to secure a divorce decree.  Legal Document Assistants work typically on amicable divorces, divorces that are fairly easy to file, for people who can deal with each other enough to get through the paperwork, and who don’t think the other spouse is hiding significant assets, or in marriages without domestic violence.

3. Mediators:  These angels of communication will help you negotiate your settlement by guiding you through conversations that you can’t get through on your own; participate in brainstorming a solution that works for both parties; and, provide a confidential environment in which to try out different ideas for settlement.  As much as people like the idea of having mediators secure the divorce, mediators only negotiate settlement terms.

4. Therapists: If you’re married to someone with a personality disorder (narcissism, sociopathic, bi-polar, histrionic) or someone who suffers from substance abuse, a therapist is important if there are minor children involved.

The Categories of Divorce:

1. Litigated in Court: Attorney v Attorney resulting in a Trial (most costly in terms of finances and emotion)

            a. The parties are separated and the lawyers talk for them

            b. Negotiate settlement for parties

            c. Adversarial & Distant Relationship between parties are created

2. Litigated Out of Court:  Attorney v Attorney with a Mediator to help with the settlement, and no trial (still costly financially but with more control over settlement terms)

            a. The parties receive necessary legal information from Attorneys

            b. A Mediator works with the parties to help craft their settlement

            c. Parties maintain control over settlement

3. Pro Per (Couple represents themselves) with Professional Help: Legal Document Assistant to File, Mediator for Settlement help, with Attorneys used in limited scope for counsel only (much less costly financially, and much more emotionally humane)

            a. Calm atmosphere is maintained

            b. Filing process is under the control of the parties

            c. Parties maintain control over settlement

4. Pro Per with No Professional Help: Self-Help Centers at Courthouses provide court forms.  This option is fraught with landmines because without professional guidance in filing all the forms lots of mistakes are made. (Least costly; Filing Fees only)

            a. Huge learning curve to figure out how to file

            b. Frustrating as forms get rejected

            c. Fraught with landmines because of no professional guidance

There are specific reasons for employing specific professionals in your divorce process.  Attorneys should never be omitted from this process because they are the only professionals who are licensed to quote law to the parties.  Knowing the law empowers you to make the settlement decisions that you’ll be comfortable with thought the divorce and once the divorce is final.

Use a Mediator to:

1. Control the Outcome if the Settlement especially in child custody divorces

2. Control Cost

3. Maintain Calm throughout the Settlement Process

Use a Legal Document Assistant to:

1. Lower Cost

2. Control Process

3. Control Time

Use an Attorney to:

1. Know the Law surrounding Your Settlement Points

2. Give Your Legal Rights

3. Have someone you can call throughout the divorce filing process when issues come up, like one parent taking the child on vacation when the other parent is concerned for the child’s safety or security

Use a Therapist to:

1. Help parties think through emotional issues that are part of the divorce

2. Discern the reasons why the divorce is the solution to the relationship

3. Keep parties focused on decisions and not on blame

4. Help to understand and forgive the other person during the divorce

5. Work with personality disordered people so that the divorce can be finalized without court intervention

6. Work with children in the divorce

7. Help with co-parenting philosophies and to understand their children’s needs

8. To talk through the emotions people experience during the divorce process


Judith Weigle

Judith M. Weigle is a Mediator, Mediation Coach, Legal Document Assistant and Paralegal at Divorce Resource, Inc. MORE >

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