One of the biggest confusions is whether hiring a divorce mediator or lawyer is the best option. While this decision is just the beginning of the process, understanding the options and making the right call can impact the outcome for everyone involved. This article will explore the roles of divorce attorneys and mediators to help you make the best decision for your life.
By the time a couple begins the divorce process, they have made many decisions about the future, culminating in the decision to go their separate ways. Choosing to separate their lives from one another is a big task, and many, especially when children are involved, would like to do it as reasonably and effectively as possible. However, there are many conflicting voices when it comes to starting a divorce, and many couples are left in confusion about how to move forward.
Understanding the Divorce Process
Before fully outlining the differences and similarities between the two roles, it is important to understand what the goal of a divorce is and the various ways that a divorce may proceed. Divorce is the legal process of separating two people from each other. The goal of divorce is to allow each person to live separately from each other while equitably dividing any assets and accounting for shared parenting time if needed.
In some divorces, there are other considerations, such as domestic abuse and child support, that will need to be accounted for. Both divorce mediation and litigation allow the parties to achieve these goals.
Divorce Mediation
Divorce mediation is an alternative dispute resolution method where the parties work with a neutral third party, the mediator, to resolve divorce issues and achieve a divorce decree. The mediation process helps divorcing spouses discuss the various aspects of divorce, such as child custody, spousal support, and property division.
The goal of the divorce mediation process is to reach a mutually agreeable settlement that saves the couple from needing to litigate the issues. It tends to be a more conciliatory process and will often produce a more favorable outcome and settlement agreement for the family’s future.
In most cases, if the spouses choose to go to mediation, they will need to go through a private mediation firm, which can be expensive, and many parties will still hire a lawyer to help them ensure that the mediated divorce is fair and equitable. However, a family court system may require parties to participate in divorce mediation before returning to divorce proceedings. In these cases, there may be financial help to pay for the mediation process and exceptions when there is domestic violence.
Divorce Litigation
A litigated divorce is the more adversarial process that many divorce cases end up using for at least one of the issues in a divorce case. This requires that the parties submit their case to a judge to determine how to divide the marital assets and custody of any minor children. Most jurisdictions will have a family law judge or two who are experts in divorce law to ensure that the court proceedings are fair, but this is not always the case.
The goal of a court case is to present the judge with all the legal information about child custody and financial matters and have them ultimately decide in a court order how everything will be resolved. While some parties can navigate the entire process without an attorney, most couples will end up hiring lawyers to represent them in the case.
Each party will need its own lawyer to provide support and family law expertise to ensure an equitable result. Legal representation also provides a buffer for the divorcing couple by allowing them to speak through attorneys. Even happily married couples fight, and divorcing couples are no different.
The Role of a Divorce Attorney
A family law attorney is often the first person who will help a couple begin the divorce. The lawyer’s role is to provide expert legal information and representation to the client to help them make the best case for why their version of separation is the best suited for the parties. They work on behalf of the client and are an adversary of the other party’s attorney. They are professionally trained in family law and are experts in the field. Most family law attorneys will represent their clients throughout the whole case, even in mediation, if the parties choose to participate.
The Role of a Divorce Mediator
A divorce mediator’s role differs slightly from a divorce lawyer’s. Instead of representing either client, they are a neutral third party, meaning that they are not representing either party nor do they have a stake in the outcome of the divorce. They are separate from the parties and are usually paid by both parties to avoid the look of partiality.
A mediator facilitates communication between the parties and their attorneys to negotiate agreements during mediation sessions. Mediators are trained to help the parties continue the conversation and acknowledge potential options for a mediation agreement. They guide the mediation session toward agreement rather than adversarial conversations. Yet it is the parties who ultimately find and agree on a resolution to the dispute.
Is a Divorce Lawyer or Mediator Right for You?
When beginning a divorce, it can be difficult to decide whether to use a mediator vs hiring a lawyer. Each option has benefits and drawbacks that can be confusing to sift through for your situation. Additionally, the options are not mutually exclusive because many people will hire a lawyer even for mediated divorces. However, some situations may suggest one option over the other.
Save Money
If you have a goal of saving money during your divorce, it may be helpful to begin the process through divorce mediation. If you and your former spouse agree about much of the division of property and child custody, you may be able to complete the process quickly and without much outside help. In this case, a mediator may be able to help you without having a lawyer represent you. Even more complicated cases can be resolved with a deft mediator. Mediation tends to be more cost-effective overall, but when the parties are paying for a lawyer each, it may not save all that much money.
Control
For some couples, the mediation process can be intriguing because it allows them to have control over the dissolution of their marriage. If you are hoping to retain the ability to decide how life after divorce will look, mediation may be the best option. Mediation gives you the ability to shape an agreement that outlines all of the considerations and details, while litigation gives that power to a judge.
Hiring a lawyer may also help you make the best long-term decisions as well because they can help you navigate the short and long-term effects of certain options that are presented. Their expertise will give you insight into the outcomes and help you find a middle ground to gain what you need without facing penalties or unforeseen consequences.
Special Considerations
In certain situations, the parties may not be able to choose how to proceed. This is particularly true when one or both parties receive government benefits, and one parent will care for the children more. Because benefits agencies are required to collect some money on behalf of the benefit holder, they are intimately involved in the child support process and determination. In these instances, a court or magistrate will need to determine child support amounts to ensure that the agency is being paid back fairly.
Other special circumstances may require a party to consult with a lawyer, such as domestic abuse and violence or complicated business or asset dissolution. If you are not confident that you will be able to parse your life up effectively, it may be helpful to consult an attorney.
Conclusion
Divorce is a difficult time for everyone involved, from the couple to the children to the supporting community. Ensuring that your divorce is done effectively and systematically will help you move forward better, whether you consult a family law attorney or choose to pursue mediation. Getting to that final decree takes time, but it will best prepare you for your future.
To learn more about the differences between mediator vs. lawyer, alternate dispute resolution, and more, contact ADR Times today!
While in law school, Emily served as an executive editor on the Pepperdine Dispute Resolution Law Journal and had the opportunity to learn about ADR from world-class professors of the Straus Institute for Dispute Resolution.
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