Ask Leslie: Should I hire a divorce mediator or litigator for my divorce?

 DEAR LESLIE, 

I am currently looking into a divorce from my marriage of 8 years. My partner and I are aiming/hoping for an amicable divorce as we have a child together. Friends of ours have opted for a mediator versus a lawyer. Should I do the same?

– Should I?

Dear, Should I?…

Pre-divorce planning (know your financial picture**) and having a strategy (goals for your future) will help you determine whether or not mediation or possible litigation is the only option for you. Hiring a mediator (an attempt to meet in the middle) is very different from hiring a lawyer (informs you of your rights). 

Is Mediation Really the Best Option for Your Divorce

Many couples contemplating a divorce hear about how fast, inexpensive, and amicable a mediator can make the process – but before taking the plunge, you should do your homework and consider your options carefully. For example, here are some things about mediation that you may not be aware of:

Many mediators are not attorneys. Some attorneys practice mediation; however, not all of those attorneys are experienced in matrimony and family law, which can be a problem for you in two ways:

  • The mediator who is not an experienced matrimonial or family lawyer may not be aware of all the long term legal contingencies that need to be included for your protection in the final, binding agreement. 
  • If the mediator fails to include the necessary legal protections and you suffer financial harm, you may not be able to recover for the mistake in the same way that you could from an attorney. 

If you and your spouse are amicable and want to keep things civil, you can still do so without going to mediation. There seems to be a common misconception that if you consult a lawyer about divorce, you are inviting a long, protracted court battle – while going to a mediator is supposed to be a more amicable and collaborative process. The fact is that if both spouses wish to keep things amicable during the divorce, then the spouse clients need to inform their respective attorneys of their wishes and long term goals and stick to them. It is generally the parties themselves who cause divorces to become long, drawn-out battles because of the highly charged emotional state that surrounds a divorce and the splitting up of families and assets. Each side tells their lawyers what they want out of the “break-up,” and it is that attorney’s obligation to inform their client of their rights in accordance with their circumstances and the consequences of choices made, as well as to guide the client to a settlement wherein each issue is resolved for both the short and long-term. 

Mediation may be cheaper in terms of upfront costs, but can cost you much more in the long-term: it is generally true that a mediator will cost a divorcing couple less money upfront compared to a scenario where each spouse has to pay his or her own lawyer. One reason for this is simply that one mediator costs less than two lawyers. Another thing to take into account is that lawyers spend more time drafting and reviewing every detail of the finalized divorce agreement to make sure that each clause will adequately protect their respective clients’ interests. In the long run, this may be the less expensive option because mediators may leave out key provisions from the agreement (I have seen this many times), which can be critical to a party’s long term financial well-being. If you have to go to a law firm years later to try to fix a problem with the divorce mediated agreement, it will end up costing much more than a mediator’s fee. 

Mediation can be a particularly bad idea if one spouse is at a financial disadvantage: courts have found a great way to equalize the playing field when a divorce occurs between one spouse who has a lot of money and one who does not. The spouse with money will have to pay for the other spouse to retain an attorney so that there is no inequality in the legal representation that either side receives.* 

*If this is the case more often than not there is enough of $$$$$ to go around. Also, there are now companies that will finance divorces. (This option should only be used if absolutely necessary). Better yet, come to a mutual agreement and part amicably. If you don’t have the money to divorce, do not waste what you have to share. 

Legal fees may be paid by the spouse with the financial advantage throughout the divorce process. They may also be credited at the end of the process for the advancement of legal fees. This will depend on your unique set of circumstances. 

In mediation, there is no such guarantee. The mediator’s goal is to get both sides to reach an agreement. Whether the agreement is really fair to each side is not the focus. So if one spouse is uninformed and willing to accept a deal that is not in his/her best interests, the mediator, as a third party neutral, will not be obligated to inform otherwise. 

There may be some cases where mediation works well for a given couple. Still, in my experience, it always pays to interview both a lawyer and mediator before deciding how to proceed. Do not just jump into mediation because of things you may have heard. Some things really are too good to be true. 

**There are many financial planners that specialize in divorce planning, use your lawyer to guide you.

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