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Mediator vs Divorce Lawyer

11 min read
Unbundled Legal Help

by Unbundled Legal Help

November 8th, 2021
Mediator Vs Divorce Lawyer

If you are in the midst of a divorce, then you know there are countless decisions you and your spouse must make. Choosing between a mediator vs divorce lawyer can be one of the more difficult choices as it will have a significant impact on your divorce as well as your relationship. 

Couples in the divorce process can choose to hire a mediator themselves or have a family court judge enter the order. During the mediation process, you can hire an attorney to advise you and/or attend mediation sessions with you. A mediator focuses on the best interest of both parties, a divorce lawyer is only interested in their client’s best interest. 

Mediators and divorce lawyers are not in opposition. In many cases, especially highly contested divorces, it is helpful to hire a mediator as well as an attorney. Learn more below about the differences between each. 

What Is Divorce Mediation?

Divorce mediation is a process that creates a neutral environment with a professionally trained, unbiased, third-party mediator. 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. 

Mediation often allows couples more control over divorce matters. If negotiations break down and a resolution cannot be reached during mediation, then the outcome of your divorce will be left up to a judge. 

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

Is Mediation Mandatory?

In a contested divorce, a family court judge may order mediation before the divorce proceedings are allowed to move forward. When mediation is ordered by a judge, you must attend those sessions. If you do not, you could face criminal charges such as contempt of court. 

Generally, court-ordered mediation is more likely for parents with child-custody disputes, couples that need assistance in solving major financial issues, and/or disputes about the division of property. 

Regardless of the type or level of disputes that you and your spouse have, you can hire a private mediator before divorce proceedings begin. Unlike court-ordered mediation, both spouses must agree to participate in the sessions and with the mediator who facilitates their process. 

It should be noted that private mediators often cost significantly more than court-ordered mediators. 

What Is the Difference Between a Mediator and a Divorce Lawyer?

Mediators and divorce lawyers both play a major role in the divorce process. While they each provide benefits, they do not serve the same function. Before deciding on mediation or a divorce lawyer, it is important to know the role that each plays and how they can affect the outcome of your divorce. Learn more about the differences between the two below. 

Divorce Mediator 

A divorce mediator can be an attorney, a retired judge, or a specifically trained mediator. They are neutral third parties whose goal is to help both sides effectively communicate, negotiate, and ultimately, draft a divorce settlement agreement. 

If mediation is not successful, a family court judge will heavily consider the recommendations of the mediator in collaboration with other professional recommendations (i.e. child custody evaluators, mental health professionals, etc.) 

A divorce mediator’s function is to help couples find solutions to their disputes. In this role, they do not advocate for one spouse over another or offer legal advice (even if they are attorneys), they must remain unbiased and neutral.

Divorce Lawyer

A divorce attorney will specifically represent you and your best interest. Their goal is to advocate and negotiate on your behalf without concern for the best interest of your spouse. You and your spouse each have the option to consult with your attorney before mediation sessions or you may elect to bring them with you. 

Furthermore, your family law lawyer will represent you during divorce proceedings if mediation is not successful. 

Advantages of Mediation 

Many states require divorce mediation for couples who are going through a contested divorce because it can be so beneficial in many ways. Some of the most impactful benefits include:

  •  Less Expensive: Hourly costs for a court-appointed mediator can be significantly lower than most divorce lawyers. Additionally, couples that attend mediation sessions can expect to pay much less in attorney fees and may decide to not hire a lawyer at all (though this is typically not recommended). 

  • Can Be Faster: Contested divorces are often long and drawn out. In contrast, mediation can be concluded in a few months or sooner. Additionally, you can schedule sessions on your own time instead of waiting for court dates. 

  • Confidential Process: If your divorce goes to trial, your personal information and the details of your divorce become public knowledge. Many couples opt for mediation because those sessions, as well as their outcomes, are private. 

  • You’re In Control: Spouses that cannot agree on the terms of their divorce through mediation or other forms of negotiation relinquish their power to a judge. If your case goes to court, it will end up as a win-lose situation. A mediator can help couples to negotiate and draft a settlement that works for both parties. 

Disadvantages of Mediation 

For the most part, there are more advantages to divorce mediation than drawbacks. However, if there are drawbacks present in your specific case, it can make the mediation process more difficult, unfair, and potentially unfruitful. Two common disadvantages of mediation include: 

  • Trusting Your Spouse on Financial Matters: Mediation occurs outside of the courtroom. The more financially savvy an individual is, the more likely they can hide assets and other financial information. If they are successful, it could negatively impact child support, spousal support, division of assets, and/or alimony.

  • It Takes Two to Mediate: In highly contested divorces, it can be difficult for spouses to negotiate, even with the help of a mediator. If couples can’t find a way to effectively communicate and work together, they could waste money and time on mediation.

Are Mediators Cheaper Than Lawyers?

The overall cost of a mediator can be significantly lower than a family law attorney. Court-approved mediators generally cost $500 -  $2,000. On the other hand, private mediators can charge as much as $10,000 or more. 

One benefit of mediation is that couples typically split the cost. Furthermore, successful mediation can substantially lower costs for legal representation. In some cases, couples prefer to bypass hiring a divorce attorney or use them for a limited function during the mediation process. 

Divorce lawyers typically charge $3k - $5k just to get started on your case and an additional $300 - $500 per hour on top of that. The high costs of prolonged legal representation during divorce proceedings can serve as a motivating factor for couples to agree through the mediation process. 

Do I Need a Lawyer for Divorce Mediation?

Technically, no. You and your partner can decide to attend mediation sessions without the help of a divorce attorney. However, this is not usually recommended. A lawyer can be especially beneficial in the following circumstances:

  • You’re not sure if your spouse is being honest about their finances

  • You generally don’t trust your partner

  • Your spouse has hired a lawyer

  • You do not have an understanding of the divorce laws in your state

  • Your case is likely going to trial

  • Child custody, child support, spousal support, and/or alimony are disputed topics

  • You want to ensure that you are making a fair agreement that’s in your best interest

If you are not sure if you should hire a divorce lawyer, it may be in your best interest to take advantage of free consultations offered by divorce lawyers. Those will allow you to compare services, experience, prices, and each attorney’s ability to help you accomplish your specific goals. 

Should I Skip Mediation?

Mediation is an effective method that helps spouses to mutually agree on the terms of their divorce. However, it is not always in the best interest of both parties to attend mediation. Couples that face the following circumstances may find that it’s more beneficial to skip mediation and head directly to a trial. 

  • No Discovery: There has not been a discovery process to verify the facts of each partner’s circumstances (finances, properties, debt, etc.). Without a discovery process, it can be difficult to negotiate with your ex since you may not have accurate facts. 

  • Unrealistic Expectations: You or your ex have unreal expectations for the outcome of the divorce. For example, one partner wants 90% of all of the assets or they do not willingly participate in the mediation process. 

  • Scheduling Conflicts: Mediation sessions can be lengthy. In some cases, they can last more than five hours. This can sometimes make it difficult for couples to schedule.  Mediation can potentially be postponed, but this extends the amount of time it will take for the divorce to be final. 

  • Highly Contentious Divorce: Divorcing couples with disputes on many issues, or have a generally bad relationship, or are just not willing to budge and find compromise may not benefit from mediation. 

It is important to note that court-ordered mediation should never be skipped. If either partner does not participate in mediation sessions after it is ordered by a family court judge, they run the risk of a default judgment against them and other negative legal consequences. 

What if My Ex and I Cannot Come to an Agreement During Mediation?

Unfortunately, mediation is not always successful. Couples that cannot agree during mediation will likely have to take their case to court and depend on a judge to make all final decisions concerning your divorce. 

In addition to losing the ability to make your own decisions, unsuccessful mediation means that you will have to pay for the cost of a mediator, your divorce lawyer, court-ordered professional services (if necessary), etc. 

Tips to Decrease Legal Fees

Divorce is expensive. While a mediator and a divorce lawyer may be necessary and beneficial, their services are not cheap. One of the most effective methods for saving money on your divorce is to cultivate a working relationship with your ex. 

This does not mean that you have to be best friends, but it does mean that you and your ex are both committed to negotiating in good faith. 

Another way to save money on the cost of a divorce lawyer is to hire an unbundled attorney to handle specific aspects of your divorce case, while you handle the rest and save thousands of dollars in upfront legal fees. Learn more about unbundled legal services below. 

Save Money with an Unbundled Lawyer

With unbundled legal help, you can hire a divorce lawyer to help you with your case for as low as $500 - $1500. An unbundled attorney will only take care of the parts of your divorce that you need help with while you take care of the rest and save money. 

Unbundled legal services are not a good fit for every case. If your case is highly complex, our network of unbundled attorneys also offers full representation at affordable rates. 

Before you spend thousands of dollars on upfront legal fees, request help, instantly connect with an unbundled divorce lawyer and learn if unbundled legal services are a good fit to help you save money on legal representation.

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