While doing an initial consultation with an individual looking to get divorced, I have found it is common to get questions about whether it is possible for a divorcing couple to work together with an attorney to do a collaborative divorce, often in an effort to reduce costs or speed up the process. While considering your options on how to work together to reduce conflict and expenses, it is important to know that you cannot have just one attorney represent both you and your spouse in a divorce: this is an inherent conflict of interest, even if you two truly agree on everything. But for those individuals who prefer to try and work together to resolve the issues in their divorce, rather than negotiate through attorneys, divorce mediation can be a great tool for the parties looking to lower their costs, shorten the process, and keep things (more) civil.
Is Divorce Mediation Better Than Divorce Court?
Divorce mediation is a process wherein both spouses will meet with a trained mediator, who may or may not be an attorney or legal expert, to discuss their agreement and try to compromise on a divorce settlement agreement. It is important to know that the mediator is a neutral third party, and it is their job to not take sides or advocate for either spouse. Instead, the mediator is trained in how to guide people through the process of conflict resolution. Some mediation sessions end with a full agreement that resolves all issues, some with a partial agreement that resolves some issues, and sometimes it ends with no agreement at all. While it can be helpful for mediation for the parties who have similar positions, mediators can also have great success working with clients who have difficulty communicating or have significant animosity towards each other. Being on good terms is not necessary for a successful mediation. However, it is also important to know that not all situations will be able to be resolved through mediation, and some are not appropriate for mediation in the first place because of the dynamics of the parties’ relationship.
Mediation can be a difficult and emotional process, but it can also be a great opportunity for someone to voice their opinions and find a resolution to the conflict in their lives. Often, people come away from mediation with a strong sense of accomplishment and greater investment in the agreement because they helped to create it, as opposed to being ordered to do something by a judge.
What Are the Pros and Cons of Going to Divorce Mediation?
PRO: Mediation is more collaborative, and often less contentious, than litigation.
For those clients who really want to approach divorce as a collaborative effort, mediation can be a great option to allow the parties to sit down together to discuss their positions and come up with a compromise that resolves their conflict on terms that both can live with. It can allow the parties to sit down with an individual trained in helping people compromise and work through conflict. Some individuals have been able to negotiate all of the issues in their divorce through a mediator, from parenting time to division of assets and debts.
CON: A mediator cannot draft settlement agreements or court orders, which are needed to finalize every divorce.
For those individuals who prefer the idea of negotiating their divorce with a mediator, it is critical to know that while a mediator cannot draft a settlement agreement for the parties–they can only draft a mediation agreement reflecting the terms of that agreement. Likewise, a mediator cannot present an agreement to a judge and request that it be entered as a judicial order. Instead, the parties will either need to pay an attorney to draft the settlement agreement(s) using the mediator’s agreement or the parties will need to draft the agreement themselves and figure out how to navigate the judicial process on their own, which can be a confusing and frustrating experience.
PRO: Mediation can be much less expensive than litigation.
While mediation does not alleviate the need to go to court, it can help you significantly reduce the cost of your divorce because mediators generally charge lower hourly rates than attorneys. Likewise, the cost of mediation, which usually happens in four-hour sessions, could end up being much less expensive than the legal fees an attorney would charge for drafting legal pleadings and multiple court appearances.
CON: A mediator will not give you any legal advice or expertise.
Because a mediator has to remain a neutral party, they cannot give you any advice about whether the agreement that you are entering into is fair or advantageous to you in terms of the current domestic relations laws. Additionally, the mediator might not have any legal training, so they may not be knowledgeable about the current laws and their impact on your divorce. Working with a mediator does not replace the expertise and knowledge that you get when you retain an experienced family law attorney.
What Are the Pros and Cons of Going to Divorce Court?
PRO: A family law attorney can handle all aspects of your case, including draft settlement agreements and finalizing your divorce at a court hearing.
As stated earlier in the article, a mediator cannot draft settlement agreements and they cannot enter them as judicial orders because they do not represent either party. For individuals who have an amicable split, they can each retain representation to negotiate an amicable divorce settlement. For those who do not feel they need two attorneys, one party can hire an attorney to do the drafting and handle the court appearances while the other party represents themself. The parties and the attorney(s) can work together to create all of the settlement agreements and orders necessary to legally finalize the divorce, and the attorney can handle all court-related issues in order to get the divorce properly finalized in court.
CON: Couples who have a very contentious or imbalanced relationship are more likely to get relief in court.
For some couples who find that they have little common ground in their positions, or have a very contentious relationship, mediation may end up more frustrating than helpful. While mediators are trained in conflict resolution, if one or both parties are not open to the mediation process or are otherwise unwilling to compromise, then little will be gained from mediation. Also, if a relationship involved abuses of power, control, and/or domestic violence, mediation would likely not be appropriate due to concerns of duress or coercion from one party to another based on the couple’s history. In those situations, litigation is the only appropriate option because it protects the individual from further abuse.
PRO: “Let the judge decide” may be best.
For some couples who have a long history of conflict, they often prefer to have a judge decide how to resolve their conflict rather than having to go through the process of trying to resolve it themselves. While judges strongly encourage divorcing couples to try their best to settle cases and resolve their own disputes, there are times when the parties are so far apart in their positions that they need someone else to tell them what is “right”. In those situations, litigation can bring finality to the parties’ conflict in a way that mediation cannot.
CON: Divorce litigation can take a long, long time.
It is not uncommon for people to begin their divorce case thinking it will be resolved in a few months because they do not realize just how long it can take to get to a hearing or trial. Not only do judges need to follow the legal process, which often means waiting periods and other procedural delays, but they will also often only schedule a hearing or trial after all other attempts at settlement have failed. This can mean that a case can go on for months, even years while going through settlement negotiations and waiting for a hearing or trial date. There can also be a long wait for court dates, depending on the judge and the attorneys’ schedules. For those hoping for a quick resolution, litigation is rarely the best option.
PRO: A lawyer will fight to get the best outcome for you.
An experienced family law attorney is the most qualified person to help navigate the legal system and keep you informed on the law and its impact on your divorce. While a mediator cannot provide any advice, an attorney will advocate on your behalf to get the best outcome in your case. Attorneys provide help, support, and a person for their clients to vent, which mediators cannot. For many individuals, knowing that they have someone on their side is an enormous comfort and source of strength when things get tough, which is almost inevitable during any divorce.