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Divorce Mediation with a Lawyer

6 min read
Gary Almeter, Attorney

by Gary Almeter, Attorney

There are thousands of decisions to make when you get divorced. Most of the focus is on questions about what to split. These range from the minor (who gets the Spotify account? who gets the television set? the painting we got as a wedding gift?) to the major (who gets the dog? how do we split retirement accounts? what about kids and holidays?).

There are also questions about how to split. Will the divorce be amicable or adversarial? Will we go to court? Will we both need attorneys? Who can I rely on for support? Divorce mediation is a way to resolve these questions through dialogue.

It is not mutually exclusive to choose between a mediator vs. divorce lawyer. In divorce mediation, a lawyer should advise you throughout the process, but a neutral mediator will be the primary guide for you and your spouse. A mediator focuses on the best interest of both parties, while a divorce lawyer is only present for their client’s best interest. 

Divorces are rarely without some sort of conflict. However, for couples determined to make the process as cooperative as it can be, mediation has emerged as a practical, reliable, less financially cataclysmic route to divorce than the traditionally adversarial route where parties let attorneys fight until the separation is final.

It is this spirit of finding a middle ground that has cultivated another alternative: engaging in divorce mediation with a lawyer. Mediation is an excellent middle ground between couples dividing things themselves, and letting a judge decide everything based on a couple of hours of testimony.

What Is Divorce Mediation?

Divorce mediation is the process that entails a neutral environment with a professionally trained and unbiased third-party mediator. A mediator helps both sides reach an agreement on all the issues that make up their final decree of divorce. A divorce mediator can be an attorney, a retired judge, or a specifically-trained professional.

Mediation often allows couples more control over divorce matters. It costs much less than going to court, maintains civility, and sets a tone for how you and your soon-to-be ex-spouse can co-exist after all the papers are signed.

Mediators help couples to negotiate, solve problems, create resolutions, as well as draft and sign a divorce settlement agreement without going through a divorce trial. A mediator does not pick sides, advocate for either party, or provide legal advice. A mediator helps the parties talk things out and find solutions that work for everyone. They make the conversation easier, keep things calm, and help both parties reach an agreement on things like money, property, and, if you have kids, how to co-parent. 

Mediators have their own style and process. Some may be quick to identify flaws in a party’s position or be reluctant to let a party know when they overestimate their level of clout. 

In addition to helping you and your spouse create and agree on a divorce settlement, mediation allows couples to rebuild their relationship skills, which can be especially beneficial if child custody becomes a contested issue.

If negotiations break down and a resolution cannot be reached during mediation, then the outcome of your divorce will be left up to negotiations between attorneys and ultimately a judge. If mediation is not successful, a family court judge may consider the recommendations of the mediator.

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How Should You Approach the Divorce Mediation Process?

Entering into divorce mediation is all about being open and willing to discuss things. You should think about what’s important to you, and where you can compromise. It’s not about winning or losing, but rather about finding a solution that works for both of you. Compared to an adversarial divorce, mediation can help each party maintain a level of dignity and respect. 

When you go for mediation without a lawyer, it can feel like you are alone. You’re relying on the mediator and your soon-to-be ex-spouse to reach a fair and just agreement that considers your legal rights. You and your spouse talk with the mediator and work through everything with their help. This is great because it is always significantly cheaper than when couples each have to hire an attorney, and pay those attorneys significant upfront fees. 

Knowing that a mediator can’t give you legal advice is important. Their job is to help with communication, not to tell you what’s legally best for you. Remembering that mediators are also human is also essential. Humans can make mistakes. Humans can also let their own biases and priorities seep into their decision-making.

Engaging an attorney who can accompany you to your divorce mediation adds a layer of protection to the proceedings. If you and your soon-to-be ex-spouse both have legal representation during the medication, you can each rest assured that there is someone to give you legal advice, to sound the alarm if something isn’t fair, to remind you of things to consider, and to advocate for you. 

There are attorneys, often referred to as unbundled attorneys, who can represent you for the mediation alone. This maintains the cost-effectiveness of mediation while adding an extra safeguard that the final divorce decree is fair. 

Additionally, if a divorce mediator can’t guide the parties to an agreement, the divorce proceedings will likely head to court. In court, you will likely hire an attorney and wait for months. At a mediation, your lawyer (and your ex-partner’s lawyer) can offer their insight and offer solutions with which the mediator may not be familiar, which can foster a final agreement. 

You’ve heard two heads are better than one? With divorce mediation with a lawyer, five heads are better than three. 

Divorce Mediation Checklist

To make divorce mediation effective, both parties need to arrive prepared and expecting to arrive at a settlement. Getting ready for mediation involves knowing your rights, and what you and your spouse own. Specifically, you’ll need:

Most importantly, come with an open mind. 

Should You Divorce Without Mediation?

Yes, you can divorce without mediation. But that usually means going to court, which can take a long time and a lot of money. 

There are times when mediation might not be the best path. If there’s been violence in the relationship or if one person isn’t willing to be fair and open, mediation is generally not recommended. In those cases, going straight to a lawyer might be better.

Finalizing Your Divorce Mediation

A mediator can’t file your divorce papers with the court. Their role is to help you agree on the terms of the divorce. Once you and your soon-to-be ex-spouse agree, you’ll need to complete the legal paperwork and filing. An attorney – particularly a limited representation attorney – can help you with this too. 

The agreements you reach in mediation become final when you submit them to a family court judge; the judge approves them and the judge issues an order or final decree of divorce. Once that’s done, the terms are set and legally binding.

Divorce mediation can be a smoother, more cooperative way to navigate the end of a marriage. It’s about working together to find solutions that work for everyone involved. 

Remember, mediation is about finding peace in a tough time. Unbundled Legal Help can connect you with affordable full or limited representation attorneys to help you understand the divorce process and assist with critical parts.

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