Divorce Mediators Vs. Attorneys: Differences, Benefits, and More
An experienced divorce mediator can make divorce much easier by supporting you every step of the way. They act as a neutral party, guiding you to agreements you both feel are fair, even when you are experiencing high levels of conflict.
As legal professionals, mediators, also known as neutrals, use their dispute and conflict resolution skills to guide a discussion between spouses and help them reach agreements on all divorce issues. As a result, both spouses feel like they have a voice, are heard and understood, receive fair treatment, and can part ways more amicably — completely avoiding a court battle.
We understand that you likely have a lot of questions. We are here to give you the information you need to make the best choices about how to move forward. Below, we will clearly and thoroughly explain the differences between hiring divorce attorneys and working with divorce mediators.
We will cover some benefits of working with a divorce mediator, what to look for in a mediator, and conclude with a few situations in which you may opt to choose one over the other.
Divorce attorney vs. divorce mediator
Divorce mediators and divorce lawyers can both play important roles in a divorce, depending on the circumstances.
However, they are quite different — each offers a unique service, skill set, type of overall divorce process, and goals.
Let’s look at the role divorce mediators and divorce attorneys each play in the divorce process.
The role of a divorce mediator
A divorce mediator is a trained professional who strategically guides discussion between divorcing spouses to help them reach their best possible agreements on all divorce issues—the same issues divorce attorneys would otherwise battle out in court. They make the divorce process smoother and less stressful, and they also set parents up for a healthier co-parenting relationship.
Mediators can — but do not have to — be lawyers to do their jobs. If the mediator is an attorney, they are not acting as your attorney while they are mediating your case, although their knowledge of divorce law and court proceedings may help them in the mediation process.
Mediators do not take sides. They do not advocate for either party in divorce proceedings or represent either party in court. They don’t help one party “win.” Instead, mediators help clients reach fair and mutually beneficial agreements.
Mediators guide spouses in reaching an agreement regarding the following aspects of the divorce:
Division of assets and debts;
Child custody arrangements as part of a comprehensive Parenting Plan; and
A divorce attorney is a lawyer who specializes in divorce law. They advocate on behalf of one spouse during legal proceedings.
This can include negotiating with the spouse’s attorneys, representing the spouse in court, reviewing settlement terms, and other legal matters.
Legal knowledge can help attorneys become successful mediators. However, good lawyers don’t necessarily make good mediators — advocating for clients requires different skills than being a mediator, which requires specific strengths and a sensitive approach. A divorce attorney can’t serve you in both roles at once. They can’t advocate on your behalf and remain neutral at the same time.
What makes a good divorce mediator?
Choosing your divorce mediator will be one of the most impactful decisions spouses make during the divorce process. In mediation, you will discuss personal issues that may feel sensitive and emotional.
Most importantly, choose a mediator that you trust. You should have confidence that your mediator is honest, compassionate, and invested in helping you both reach your best possible agreements.
Training and Education
Divorce mediators must meet certain training and continuing education requirements state by state to be recommended by the court. Specialized training, including an initial 40-hour mediation training program and evidence of other substantial conflict resolution education, is a good sign that your mediator is the right fit.
Aurit Center Certified Mediators meet rigorous training and continuing education requirements to ensure our professionals provide the highest practice standards.
Another good sign is when the majority of the professional’s practice is devoted to mediation. It is advantageous when your mediator performs a large number of mediations per year. They will have more experience reaching mutually beneficial agreements efficiently.
Mediators may specialize in certain aspects of divorce. Most family mediators are attorneys or therapists. Some mediators have a financial background, such as those who are certified divorce financial analysts. You can decide which type of mediator you feel most comfortable working with.
Regardless, good mediators are highly trained in conflict resolution and related skills. They are empathetic listeners who remain calm, kind, and professional while avoiding “taking sides.”
Finally, consider whether a mediator offers a flat fee for mediation services or requires hourly billing. Hourly billing is the traditional “attorney approach” to fees and can create a level of uncertainty where costs can rise quickly. Flat fees create predictability and financial stability for spouses in mediation. This choice is preferable for most.
Being interested in finding a mediator right for you means that you will likely find who and what you need. For an introduction to a Aurit Center Certified Mediator, contact us, and we can help you.
Can I still hire a lawyer if I work with a mediator?
Yes. If you prefer, a mediation-friendly lawyer can provide an additional layer of support when you work with a mediator. We always encourage that you have access to legal representation if you feel like you need it.
The upside to working with a mediator is that you may avoid most or all litigation, saving yourself a small fortune on legal fees. Your lawyer can instead review the settlement terms and provide legal advice during the process to give you extra reassurance.
However, remember that a lawyer’s role is to fight for their client. This could create conflict, so be cautious when hiring an attorney.
Divorce mediation vs. traditional divorce
Divorce mediation, compared to traditional divorce litigation in court, is the difference between a healthier process that supports you and one that generally causes conflict and can inflict harm.
Taking care of the divorce on your own is risky because you must learn and follow the entire legal process to get things done correctly according to the law. Missteps can create a lot of headaches, costs, and delays for both parties — even in the most amicable of divorces.
Most people find it best to work with either a divorce mediator or divorce lawyer rather than running into troubles down the road.
Let’s look at how traditional divorce (litigation) vs. divorce mediation in more detail to better understand which might work best for your situation.
Traditional divorce litigation
In the past, divorces generally started with one spouse hiring a divorce attorney and filing a formal petition with the court to terminate the marriage. Then the other spouse would get served with papers, often in a public place, causing a great deal of stress and embarrassment.
The petition includes a statement showing that at least one spouse meets the state’s residency requirements, a reason for the divorce, and other information the state requires.
The spouse’s lawyers begin negotiating, often after telling the spouses not to communicate with one another directly. This is a combative process since each lawyer aims to “win” rather than aiming to help the spouses reach an agreement, like in mediation.
If the lawyers cannot reach all agreements, the divorce heads to court. The court sets a court date at their convenience, and each attorney prepares to argue their client’s case before a judge.
During the trial, each attorney presents evidence to support their client’s case. Outside witnesses, including children, may be called in to support claims regarding financial support, asset division, custody, and other issues. Additionally, a judge may require the parties or their children to undergo psychological testing or assessment before making a decision. The judge may also decide to make decisions based only on what he hears in court.
After the trial, the judge reaches all decisions regarding custody, parenting time, child support, alimony, spousal support, asset and debt divisions, etc.
The judge then signs and issues a divorce decree making legal the end of the marriage and specifying all details regarding the issues of the divorce. By law, both spouses must follow every directive in this decree.
Unfortunately, it is often the case that both parties are unhappy with the judge’s decisions and therefore choose not to follow the directives. This results in further litigation and continued conflict, which is harmful to the well-being of everyone involved — especially children.
Litigation can take months to a year or more to complete and cost each side a substantial amount in legal and court fees. Often, any profit from the sale of the marital home is spent on legal fees rather than used to help each spouse maintain financial stability through the transition.
The more adversarial nature of litigation can be stressful and make the split less amicable. This can negatively impact the children and strain the co-parenting relationship — especially if one side feels they did not receive fair treatment.
In divorce mediation, the spouses meet with a neutral, agreed-upon divorce mediator. This may take place in the mediator’s office or online.
The mediator makes the spouses feel comfortable and guides discussion during each mediation meeting. They listen empathetically, giving both sides an opportunity to speak and be heard and understood. As the discussion progresses, the mediator uses creative techniques and strategies that move the spouses toward agreement on each critical divorce-related issue.
The mediated agreements are given to the court in the form of a petition, decree, or judgment to end the marriage. When the judge signs the documents, the divorce is finalized, and the marriage is legally ended.
Spouses may choose to complete mediation before any formal divorce court filings take place to help avoid the potential for litigation. The mediator can help the couple resolve all relevant issues and incorporate their decisions into a divorce settlement agreement.
Then, the documents containing the divorce agreements are sent to the judge for their review. The judge ensures it meets all state requirements and addresses all relevant issues. Then, the judge finalizes the documents, legally ending the marriage.
If you reach an agreement through mediation before the petition is filed, you can reference the agreement or include its terms in the petition. If you reach an agreement after filing the petition, you can submit the agreement to the court and ask the clerk to schedule a final hearing.
Regardless, in most states, you will not have to appear in person at the courthouse for the final ruling to agree to the terms. It is a mere technicality when required since courts almost always defer to spouses’ agreements.
What happens if mediation fails?
Mediation is usually successful, but in the rare case that it does not succeed — meaning agreements are not reached — the spouses may have to go to court. However, even mediations that don’t result in full agreements can help since both sides will have the information their attorneys need to effectively prepare their cases.
This can greatly reduce the amount spent in court, resulting in a speedier trial and saving time and money for both spouses. So, even when all agreements aren’t reached in mediation, it is likely the divorce may still be more amicable since the couple began to communicate in more productive ways.
Unlike the adversarial nature of litigation, mediation is cooperative and respectful. You and your spouse communicate directly with one another with the help of a neutral mediator instead of through divorce lawyers.
The goal is for both spouses to feel satisfied rather than either spouse “winning.” In mediation, both spouses have a “buy-in,” knowing their side of the story was heard and that they worked together to establish the agreement.
Mediation can cool down a heated divorce situation and potentially preserve a cordial or even friendly relationship between spouses after their divorce.
Better for children
Fifty years of research show that it is the conflict between parents during and after divorce that causes lasting psychological harm to children—not the divorce itself.
Litigation is tough on kids for several reasons, but mostly because it exposes them to unnecessary harmful conflict.
Sometimes, children blame themselves for their parents’ divorce. More conflict and resentment between their parents can worsen these feelings, which can take a toll on the child’s mental health.
Litigation can be focused on the spouse’s needs in terms of custody and visitation arrangements and may not meet the children’s specific needs.
Furthermore, children are often called to testify in divorce court. Exposing private matters and choosing sides in front of their parents and strangers can be highly distressing. Conflicting loyalties and guilt often worsen the situation causing lasting trauma.
Litigation is stressful in that it occupies a lot of time, leaving you with less time to spend with your kids during an emotionally tumultuous period of their lives.
Lastly, going to court sets litigation as the precedent for resolving disputes later. Parents sometimes spend years — most of their kids’ childhoods, in fact — litigating various issues at the expense of their children’s emotional and psychological well-being.
Children benefit from seeing their parents cooperate and communicate respectfully during and after a divorce. The mediator focuses on your children’s well-being, and there’s no “picking sides.” And when parents have more control through mediation, each parent has more time to spend with their kids providing much-needed security and stability.
Conflict resolution does not have to be a fight. Mediation and negotiation, not litigation, become the precedent for working things out, thereby protecting the wellness of everyone involved.
A litigated divorce can cost tens of thousands of dollars for even the simplest cases. In general, though, a divorce can cost $15,000 to $20,000 per spouse.
Plus, time spent in court may take you away from work, impacting your income.
Divorce mediation, on the other hand, typically costs $1,500 to $4,000 per spouse — though this depends on the mediator and the complexity of the divorce, among other factors.
The cost savings alone can persuade an on-the-fence spouse to try mediation.
Watch out for how mediators charge. Billing by the hour may incentivize a mediator, or an attorney, to prolong the process and potentially create more conflict. This costs you more, wastes your time, and makes the process more stressful for everyone.
You want to look for mediators who operate on a flat fee structure, like The Aurit Center. A flat fee structure creates more incentive to resolve issues as efficiently and productively as possible and reach an agreement that both spouses feel is fair.
State law requires a minimum waiting period for a divorce. Thus, even the most amicable and simple divorces will take the state’s minimum requirement.
Mediation can get you closer to this timeframe than litigation.
When to reconsider divorce mediation
Divorce mediation can be an excellent solution for many divorcing couples, but there are some situations where it is best to more thoroughly consider your options.
Here are a couple of circumstances in which spouses might want to reconsider:
Domestic violence or abuse
Oftentimes, even when there is a history of abuse, mediation can work when both parties voluntarily want to participate, and safeguards are in place that provide safety. Safeguards may include the presence of attorneys in mediation meetings, using online mediation to ensure spouses are in different locations, and confirming that spouses live separately during the mediation process.
Mediation may not be suitable for people who are experiencing or have experienced severe domestic abuse or threats of abuse. This can be true regardless of when the abuse occurred; however the recency of abuse is a key factor in determining whether a case is right for mediation.
In certain circumstances, seeking help from an attorney may be a better course of action.
Similarly, mediation is not best suited when there is fear for the children’s safety.
One spouse refuses to mediate
In some relationships, one spouse may be less willing to mediate. Still, depending on your situation, approaching your spouse about mediation may be worth a try.
To help get your spouse on board, it’s a good idea to fully understand the divorce mediation process and find a good mediator before you present them with the idea of mediating your divorce.
When broaching the conversation of divorce mediation with your spouse, be patient and empathetic. Your spouse may refuse at first simply because they don’t know what mediation is or how it works. Gently provide information about the benefits of mediation and explain that you can attend a no-obligation free consultation to learn more before making a decision.
Offering to pay for the first session yourself can be helpful. Remember that mediation tends to cost far less than litigation — so if you can get them in the door and their experience is positive, they become more open to mediation.
Hiring a divorce attorney can cause unnecessary conflict since the attorney’s role is to fight for their client, not reach a mutual agreement. Although we believe people should always have access to legal advice, a mediator can help divorcing couples avoid problems while also speeding up the process and saving both spouses a lot of money.
At the Aurit Center, both spouses can meet in neutral territory to discuss their interests cooperatively. This can help finalize their divorce more quickly, save them money, reduce resentment or hard feelings, reduce stress, and protect their children emotionally and psychologically.