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.
Divorce mediator vs lawyer
Before we cover some of the key differences in 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.
Traditional divorce litigation:
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 for their legal rights 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:
Jen's lawyer files paperwork with the court requesting a divorce on behalf of her client.
Mike is then notified usually by mail, but it sometimes happens in person, that Jen wants a divorce.
Each spouse meets with their divorce lawyer to identify the relevant issues to their case and provide them with a high-level overview of what it is they're looking to get in the divorce.
In parallel, each spouse's lawyer also requests personal and financial information related to the case from the other side.
At this point, Jen's lawyer will give her advice on what they think Jen should ask for, and what the terms of the divorce settlement might be if decided by a judge.
Jen may or may not agree with her lawyer's advice because remember - ultimately, it's up to Jen to decide what it is she wants to do.
Jen tells her lawyer what she wants the settlement to look like regarding property and asset division, parenting and timesharing, child support, and alimony, as well as other conditions of the divorce.
Jen's lawyer sends a letter to Mike's lawyer outlining Jen's proposed settlement terms.
Mike's lawyer discusses the proposed terms with Mike. Mike's lawyer gives Mike advice on what he thinks he should take, not agree to, agree to. Mike may or may not agree with his lawyer's advice.
Mike decides whether or not he agrees with any/or all of the proposed terms.
The spouses' lawyers then go back and forth until all terms are agreed to by both sides.
This can take weeks, months, or even years, depending on how cooperative or difficult the spouses – and their lawyers – want to be throughout the legal proceedings.
Once both spouses agree, Jen's lawyer then goes ahead and drafts the settlement agreement, 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.
A court date will be set. And each divorce attorney along with the party that hired them will prepare their case.
In contested divorces, 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. These are what is known as contested divorces.
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 divorce mediator acts as an independent, neutral third-party who conducts mediation proceedings.
Mediators help parties involved in a conflict or dispute come to a mutual 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 two spouses have full control over the divorce agreement and decisions they will be making.
There are a number of skills a divorce 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 which are in both their best interests.
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 mutually beneficial agreement is not as easy as one might think!
But ultimately, divorce mediation helps couples avoid the trauma and emotional stress 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 negotiate agreements on 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 resolve divorce issues without lawyers, without court and without litigation.
Collaborative divorce:
The Collaborative Law Process (also referred to as collaborative divorce, collaborative process or collaborative divorce process) is an alternative dispute resolution method that 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.
Differences between using a divorce mediator vs lawyer for a divorce:
Number of professionals
In divorce mediation, there is 1 mediator vs. 2 lawyers for divorce (one lawyer per spouse.)
Premise
A lawyer can only represent one spouse and their job is to advocate for their one client.
A mediator is a neutral third party and doesn't take sides – in divorce mediation, they help both spouses negotiate and reach an agreement best for them and their children.
Approach
Lawyers give legal advice and advise their clients on what to do.
Mediators do not dispense legal advice. Instead, the divorcing couple has full control over making their own decisions.
Time to Completion
A lawyer-driven divorce can take 18 months to 3 years to complete.
A mediated divorce can take 3 to 6 months to complete (2 to 5 mediation sessions) and the speed of the process is in large part directed by the spouses.
Once mediation is completed, the speed of the divorce process is related to the time it takes to file and complete the divorce through the courts.
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 court case ever goes to trial and the judge makes their decision, you could find that you're not satisfied with the ruling in your divorce matter.
In private mediation, since both spouses have a direct say in outlining the terms of their agreement, dispute resolution outcomes are certain with respect to the couple's parenting plan arrangement, child custody and child support, spousal support, property division and all other issues that must be resolved in their divorce.
Peaceful
A lawyer-driven divorce, especially litigation, is an adversarial process and not peaceful in any way.
The divorce mediation process is non-adversarial and cooperative so mediation is more peaceful.
Confidentiality
A divorce litigation is a matter of public record.
Mediation is a private process and its contents confidential.
Mediation vs divorce lawyer: Which should you choose?
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 in some drawn out court battle, 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 attend mediation, you can have a successful family mediation.
And you can more peacefully divorce and preserve your emotional well being.
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 on legal fees for your divorce case.
And everyone knows that's just the beginning. The cost of divorce only goes up from there, especially in contentious cases where 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.
Use a divorce lawyer vs mediator when:
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, in cases of contested divorces, you'll need to find another divorce method.
Divorce mediator vs attorney for divorce?
As you can see, the question of whether to use a lawyer vs mediator is one that solely depends on your unique situation.
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!
