Mediation and divorce: Do I need a lawyer?

Mediation can offer couples going through divorce an alternative to traditional litigation. Instead of going to the courtroom and arguing each side in front of a judge to determine who is right, mediation offers a way for both sides to negotiate a resolution together, on their own terms.

This is just one of the many benefits of mediation. Others include:

• Efficiency. Since it does not rely on courtroom hearings, the mediation process is not bound by the court calendar. This can allow greater flexibility in scheduling as those who choose mediation schedule the process based on their calendars and that of their chosen mediator. This cuts down on the time it takes to complete the process, which also translates to financial savings.
• Control. As noted above, the divorcing parties guide negotiations, not a judge. This allows the parties greater control in the direction of the negotiations and the final proposed settlement.
• Privacy. Mediation is private, while court hearings for these types of matters generally are not.

Mediation is not a new process. Those going through divorce have used mediation for decades and we have plenty of data to support its use for family law matters like divorce and child custody. In fact, more and more families are using mediation to finalize their divorce. Recent data shows more than 90% of parents going through a divorce use a form of alternative dispute resolution, often mediation. This is likely due in large part to the fact that mediation allows parents to avoid litigation and, as noted in the benefits above, can give parents more control over various legal matters such as how the parents choose to split time with their children.

Won’t my attorney want mediation to fail so we go to court?

Those considering mediation have voiced concern that an attorney may be motivated to discourage successful mediation in the hopes the issue will go to trial. This is not helpful for the attorney, as they generally cannot provide counsel if the case goes to trial. Their client would likely need to find new legal representation.

Data from the same pole discussed above also found those who enter mediation with legal representation are more likely to reach an amicable resolution than those who do not. The numbers were significant. 86% of respondents with legal representation reached a settlement while only 71% of those without representation found success in the mediation process.

How does an attorney help the mediation process?

In addition to mitigating the risk of surprises after the mediation process is complete by explaining the implication of a proposed settlement to their client, the presence of legal representation can also provide a sense of comfort. With legal counsel on their side, each party will know that their interests and legal rights are represented and protected throughout the mediation process. The presence of legal counsel can also save time, as the attorneys can prepare the necessary paperwork to finalize the mediation process. This often involves filings for Court review. Legal representation during mediation can help both parties go into the final resolution confident that they tailored an agreement that works well for their family’s future.