Mediation vs. Lawyer
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What is the Mediator’s Role?

A mediator is an independent, neutral third-party who conducts mediation. He or she helps people involved in a conflict or dispute/divorce come to an agreement.

For couples seeking a divorce, the divorce itself is the dispute and the mediator’s role is to help both parties (spouses) identify, negotiate and come to mutually-acceptable agreement on the various issues and financial matters required to end their marriage out of court.

The divorce mediator actively participates in the negotiations, but the spouses have full control over the decisions they will be making.

A mediator can be an attorney or non-attorney (financial professional, mental health professional, etc.).  There are also some divorce attorneys or judges that have retired from the legal profession and have moved to divorce mediation.

There are also professionally trained mediators whose main focus is divorced mediation and have a variety of skills that help with that role.
What is a Lawyer’s Role?

A lawyer’s role is to advocate for the one spouse that hired them with the goal of achieving the most favorable outcome for their one client. A divorce lawyer can only represent one party.

In a standard lawyer divorce process (may differ by state), each spouse hires their own lawyer to identify, negotiate and attempt to resolve the issues required to end their marriage.

The two lawyers will enter negotiations on behalf of their clients regarding the issues.  If agreement cannot be reached on one or more of the issues using this approach, the divorce will carry on through the family court system (litigation).

A court date will be set. And each divorce attorney along with the spouse that hired them will prepare their case.  Documents will be presented to the courts throughout the trial. Arguments will be made regarding the merits of positions.

Witnesses or outside experts will be brought in to testify. The couple’s children may even be called to the stand.

All of this transpires in court in front of a family law judge who will ultimately decide the outcome regarding parenting and timesharing, child custody, child support, alimony and division of marital assets and debts.
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Use Divorce Mediation when:

1. You want what's best for your children.

Divorce is tough on kids, on that point there we can all agree.  By discussing the issues as parents, instead of litigants, you can outline the terms of your settlement including timesharing and child support so that they are focused on what's truly best for your children.

2. You want to keep things peaceful.

You don't need to agree on everything or be the best of friends to mediate your divorce case.  If you and your soon-to-be ex are both willing to mediate, mediation can successfully work for you.

3. You want to save money.

Mediation is less expensive than litigation.

4. You don't want your divorce proceedings to drag on forever.

litigation tends to takes longer than divorce mediation, because of the back and forth nature of communications that happen between opposing counsel.  In mediation, all communications take place in real time, so any disagreements can be discussed and resolved right then and there.

5. You want a high level of control over your settlement agreement.

Mediation allows you and your husband or wife to discuss and resolve all issues that pertain to your particular situation. And your agreement can also be customized to your specific needs.
Get a Divorce Lawyer when:

1. Your spouse is incapacitated.

If your spouse is perhaps an addict or are living with a neurological condition such as Alzheimer's disease, they may not be able to make sound decisions.  If they're mentally incapacitated in any way, they'll need an advocate and should get an attorney.

2. You fear for your safety or there's domestic violence.

Your safety should be your number one concern, so if you are afraid for your safety, you'll want to get an attorney instead of using mediation.

3. You have reason to believe your spouse is hiding assets.

Lawyers can file motions with the courts to compel your spouse to surrender the necessary documentation needed to see if, in fact, there is an issue.

4. Your spouse is unwilling to mediate.

Because mediation is a voluntary process, both of you must be willing to at least give it a try. Active participation by both spouses is one of the requirements to make mediation work.  Child support, alimony and division of marital assets and debts.
Mediation vs. Lawyer
And finally, here are some of the logistics on the topic...

Number of Professionals | In divorce mediation, there is 1 mediator vs. 2 lawyers for divorce.

•   A lawyer can only represent one party and their job is to advocate or “fight” for their one client.
•   A mediator is a neutral third party and doesn’t take sides – in the divorce mediation process, they help both spouses reach an agreement best for them and their children.

Time to Completion

•   A lawyer-driven divorce can take 18 months to 3 years to complete.
•   A mediated divorce can take 2 to 6 months to complete (1 to 5 mediation sessions) and the speed of the process is in large part directed by the spouses.

Cost

•   A standard lawyer-driven divorce can range from $20,000 to $32,000.  If a case goes to trial, litigation can range from $78,000 to $200,000.
•   The cost of mediation can range from $5,000 to $9,000 depending on case complexity.

Certainty of Outcome | Both options have a level of risk. 

•   A lawyer-driven divorce is risky because there are no guarantees as to which side of any issue a judge is going to rule in court.
•   Mediation can be risky because you may not be able to reach a common ground and end up hiring a lawyer and litigating your divorce anyway.

Confidentiality

•   Divorce litigation is a matter of public record.
•   Divorce mediation is private and confidential.

Your Decision | When it comes to the crunch, it is your decision and for the most part your decision will be driven by finances and your current relationship with your spouse.

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