The decision to get a divorce is a very difficult one no matter where you live or what the circumstances.
But while some may think the decision itself is the hardest part of the divorce process, the choice of using divorce mediation vs a lawyer can be an even more challenging one if you don't know the differences between the two.
With a little education, you can make the decision that's right for you in your situation.
Before we cover some of the differences between using a divorce mediator vs attorney, here’s a high-level overview of how each of these divorce options work:
What is a Lawyer’s Role?
A lawyer’s role is to advocate for the one party that hired them with the goal of achieving the most favorable outcome for their one client.
A lawyer can only represent one party.
There are many steps involved in a litigated divorce with lawyers and the steps vary from state-to-state, county-to county and couple-to-couple.
But at a very high level, in a standard lawyer divorce, each divorcing spouse hires their own lawyer to help them complete the steps required for divorce, and to advocate on their behalf.
The two lawyers will enter into negotiations on behalf of their clients regarding the issues.
For the sole purpose of describing a Lawyer-Driven Divorce as simplistically as possible, I’m going to use a fictitious couple where Jen is the wife and Mike is the husband.
We are assuming that Jen and Mike are being reasonable and that each lawyer is being reasonable, though it is common for an Attorney-Driven divorce to escalate into something less cooperative.
So, here’s how it begins:
This can take weeks, months, or even years, depending on how cooperative or difficult the spouses – and their lawyers – want to be.
Once both spouses agree, Jen’s lawyer then goes ahead and drafts the paperwork, files more paperwork with the courts, and requests a court date and final hearing.
If agreement cannot be reached on one or more of the issues using this approach, the divorce will carry on through the family court system.
Documents will be presented to the court throughout the divorce trial. Arguments will be made regarding the merits of positions.
Witnesses or outside experts will be brought in to court to testify.
The couple’s children may even be called to the stand during litigation.
All of this transpires in court in front of a family law judge who will ultimately decide the outcome regarding parenting time, child custody, child support, alimony and division of marital assets and debts.
Divorce Mediation Process: What is a Mediator and What is the Mediator’s Role?
Divorce mediation is a dynamic alternative dispute resolution process. And a mediator is an independent, neutral third-party who conducts mediation proceedings.
Mediators help parties involved in a conflict or dispute come to agreement.
For a divorcing couple, the divorce itself is the dispute and the mediator’s role is to help both spouses identify, negotiate and come to mutually-acceptable agreement on the various issues and financial matters required for divorce.
In a mediation session, the divorce mediator actively participates in the negotiations, but the spouses have full control over the divorce agreement and decisions they will be making.
There are a number of skills a mediator must possess in order to make them highly-skilled.
First, a highly-skilled mediator must have extensive knowledge on a wide variety of topics ranging from parenting and time sharing, child support, alimony, and the distribution of martial property and debts.
And do so specifically for the state in which a couple lives - or is filing for divorce.
But just knowing about these topics isn’t enough to be a highly-skilled mediator!
A mediator also needs to be able to use that knowledge to facilitate, and actively engage a couple in, a series of discussions surrounding the necessary issues to be resolved in their divorce.
The mediator must not only listen to each spouse’s wants, needs, concerns, and goals, but help formulate ideas, bring options to the table, and work with them to develop fair and equitable solutions.
The ultimate goal of the mediator is to help couples come to mutually acceptable agreements - on all of the required issues - to peacefully end their marriage out of court.
Now, if they don’t agree on a particular topic, a highly skilled mediator will have - and use - a variety of advanced conflict resolution techniques to help them communicate, understand each other's interests, and negotiate the areas of disagreement.
Once the mediator has assisted the divorcing couple in reaching all necessary agreements, they now need to be able to expertly draft those agreements into a comprehensive memorandum of understanding. As well as prepare a host of other supporting paperwork.
Since by its very nature, divorce is a conflict between two people, guiding a divorcing couple to agreement is not as easy as one might think!
But ultimately, divorce mediation helps couples avoid the trauma that often results from more contentious divorce methods.
Finally, it’s important to note that while some mediators meet with clients in-person, others practice divorce mediation online, delivering mediation services to clients via telephone and screen-sharing software or video conferencing software.
This type of mediation should not be confused with an Internet (or Online) Divorce, because they are two different things.
Online mediation is actual divorce mediation, but simply conducted in an online format.
Is a Mediator a Lawyer?
Mediation is a skillset unto itself and is also an unregulated field.
So a mediator can be a family law attorney or a non-attorney (financial professional, mental health professional, etc.).
It is common for a divorce attorney or retired judge to feel that attending law school provides them the skills they need in order to practice mediation, so you will find that there are a number of divorce mediation attorneys out there.
But while they may have a grasp of divorce law, they may or may not know how to be an effective, neutral mediator.
Lawyers also may not have the financial acumen required to resolve the many complex fiscal matters surrounding divorce.
The best mediators have been professionally trained in mediation, are fully neutral, know the divorce issues, and are also experts in resolving the complex financial matters surrounding the divorce.
There is no requirement that a mediator be a lawyer and in fact, some of the most qualified mediators aren't lawyers at all.
Additionally, when a couple uses divorce mediation, lawyers are not also required at any point in their uncontested divorce unless either/both spouses choose to involve them.
That makes mediating a good option for those who wish to divorce without lawyers, without court and without litigation.
Learn more about divorce through mediation
The Collaborative Law Process (also referred to as collaborative divorce, collaborative process or collaborative divorce process) is a cross between lawyer-driven divorce litigation and divorce mediation.
To learn more about the differences between these two divorce methods, read: Collaborative Divorce Process vs Mediation Process.
To learn more about how each of these three divorce options work, read: The 5 Divorce Options and How to Choose the Right One for You.
Number of Professionals
Premise
Approach
Time to Completion
Cost
According to FindLaw, the median cost of a divorce lawyer is $10,000+ per spouse. Which means the average cost of a traditional lawyer-driven divorce starts at $20,000 per couple.
While the cost of a lawyer-led collaborative divorce can range from $25,000 to $50,000 per couple.
And if a divorce goes to trial, it can range from $78,000 to $200,000 per couple.
The total cost of a mediated divorce can range from $6,000 to $10,000 and depends on the experience and skill level of the mediator, the scope of services they include, a couple's specific case complexities and conflict level, and the state where the divorce is taking place.
Certainty of Outcome
A lawyer-driven litigated divorce is risky because there are no guarantees as to which side of any issue a judge is going to rule in court.
Some lawyers use strategies to confuse, manipulate or outsmart their opposition. Every lawyer has their own style and personality. Some family law attorneys can be hostile and deceptive; others can be irrational.
So if you hire a divorce lawyer who is unreasonable or incompetent, you could find yourself with an unfavorable case outcome.
And if your case goes to trial and the judge makes their decision, you could find that you're not satisfied with the ruling in your divorce matter.
Peaceful
Confidentiality
Here are some good reasons to choose mediation vs lawyers for divorce.
1. You want what's best for your children.
Far and away, this is first on the list of the many benefits of divorce mediation. As a parent, you already know that divorce is tough on you.
But it's even tougher on your kids.
So by discussing the issues as parents, instead of litigants, you can outline the terms of your settlement agreement including time sharing and child support so that they are focused on what's truly best for your children.
2. You want to keep things peaceful.
Even happily married couples argue occasionally, so it's no surprise that divorcing spouses fight.
But you don't need to agree on everything or be the best of friends in order to mediate.
If you and your soon-to-be ex are both willing to mediate, you can have a successful family mediation.
And you can more peacefully divorce.
3. You want to save money.
Retainers range from $5,000 to $10,000 per person.
So if you work with lawyers, right off the bat you're looking at spending a minimum of $10,000 to $20,000 for your divorce case.
And everyone knows that's just the beginning. The cost of divorce only goes up from there, especially if there's disagreement on any of the issues.
But if you use mediation, you can save thousands on your divorce.
4. You don't want your divorce proceedings to drag on forever.
When you look at the choice of a divorce mediator vs attorney, mediated divorces take significantly less time.
Divorces that are handled by attorneys take longer, in part, because of the back and forth nature of communications that happen between opposing counsel.
Instead of waiting to talk to your lawyer about a topic of disagreement and then waiting for your lawyer to write a letter to the other side and then waiting for a response, in mediation, all communications take place in real time so any disagreements can be discussed and resolved right then and there.
If you want to complete your divorce in a lot less time, mediation is the way to go.
5. You want a high level of control over your divorce agreement.
Mediation allows you and your husband or wife to discuss and resolve all issues that pertain to your particular situation. And your agreement can also be customized to your specific needs.
The two of you will be fully empowered to make educated decisions that are right for you. And your divorce settlement will be fair to both of you because you'll both have direct input into crafting its terms and conditions.
1. Your spouse is incapacitated.
Mediation is all about "self-determination" and the parties' abilities to make decisions that are in their own best self-interests.
But what if you have doubts about your spouse's ability to do that?
Perhaps they're an addict or are living with a neurological condition such as Alzheimer's disease. Or for some other reason, they do not have the ability to make sound decisions.
If they're mentally incapacitated in any way, they'll need an advocate and should get a family law attorney.
2. You fear for your safety or there's domestic violence.
If there's a restraining order in effect, it may make mediating impossible.
Or maybe there's such a significant power imbalance that you are afraid to express your true needs for fear of retribution from the other side.
Your safety should be your number one concern, so if you are afraid for your safety, you'll want to get an attorney instead of using mediation.
3. You have reason to believe your spouse is hiding assets.
Mediation is a good faith negotiation and requires transparency.
So if you have evidence that your husband or wife is hiding assets or debts from you, or their business dealings aren't above bar, choose a lawyer vs a mediator.
Lawyers can file motions with the courts to compel your spouse to surrender the necessary documentation needed to see if, in fact, there is an issue.
4. Your spouse is unwilling to mediate.
Because mediation is a voluntary process, both of you must be willing to at least give it a try. Active participation by both spouses is one of the requirements to make mediation work.
If you want to mediate but your spouse refuses to cooperate, you'll need to find another divorce method.
But if you want to divorce amicably and do what's best for your children while saving money and time in the process, and your spouse is willing to do the same, get a mediator vs divorce lawyer.
You'll be glad you did!
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