Getting divorced does not necessarily mean you have to go to court. Considering mediation vs lawyer for divorce can help you settle amicably and choose the best option. You could settle amicably out of court, or you could use mediation if you prefer. Most people are not sure how to decide which of these options is appropriate for them. What is the difference between divorce mediation and litigation? Which one is the best for you?

What is a Lawyer’s Role?

The traditional route for most divorce procedures is to hire a lawyer and follow a process of litigation. In this case, you have to go to court and you have a lawyer who advocates on your behalf in an attempt to get you the most favorable outcome. Your spouse would then hire their own lawyer who would represent their best interests. The role of the lawyer is to advocate for the party that hired them, aiming to achieve the best possible outcome for that party. Lawyers represent only one party and will fight to build the best possible case for their clients. The two opposing legal teams will enter into negotiations on behalf of their clients. If a resolution cannot be reached, the divorce will go to family court, where the lawyers will take their arguments to the judge in the hope of reaching an outcome most beneficial for their side.

When a case goes to court, the judge has the final decision over matters such as child support, alimony, and division of assets.

Litigated Divorce

In traditional divorce litigation, one spouse begins the divorce process by filing a formal request with the court to end the marriage and address key divorce issues like property division, child custody, and spousal support. When both parties cannot agree on these matters, the situation becomes a “contested divorce.”

If the two spouses cannot reach a settlement agreement, the divorce case proceeds to trial. During the trial, each party presents their side, along with evidence to support their claims. After reviewing the divorce case, the judge will issue a divorce decree, which serves as a binding court order that outlines the decisions on unresolved matters. This divorce litigation can take years to finalize and often leads to significant legal fees.

On average, a contested divorce proceeding that goes to trial can cost each party tens of thousands of dollars. These costs increase if experts are involved or if parties frequently file motions requesting the judge to rule on specific matters. In many cases, choosing to hire a divorce lawyer or exploring alternative dispute resolution methods, such as mediation sessions or collaborative divorce, can be more cost-effective.

Mediated Divorce

Divorce mediation offers an alternative to the traditional legal process of a contested divorce. In private mediation, couples work with a neutral third-party mediator to resolve key issues in their divorce without needing to go to court. It’s important to note that the mediator does not make decisions or orders for the case; instead, mediators can help guide discussions and assist the couple in reaching a divorce settlement. Once an agreement is reached, the mediator often helps write up a legal settlement agreement to present to the judge.

While mediation is not free, it generally costs far less than going through a litigated divorce. On average, the cost of mediation may range from $3,000 to $8,000, depending on factors such as market rates and whether experts are needed for complex matters like property division. For many couples, this form of alternative dispute resolution is more cost-effective than a traditional divorce proceeding.

It’s important to note that a successful mediation does not automatically finalize the divorce. After reaching an uncontested divorce settlement in mediation, a court still needs to approve and finalize the divorce. If mediation occurs before filing a divorce petition, the petition must include the terms of the agreement. If mediation happens after filing, the settlement agreement can be submitted to the court. The judge will then review the agreement to ensure it complies with state divorce requirements. In some cases, the judge may finalize the divorce without an in-person hearing, while other situations might require both parties to attend a hearing to confirm the settlement terms. Once all documents are reviewed, the judge issues the final divorce decree.

Divorce Mediation vs Lawyer: Differences Between the Two

Number of Professionals

In divorce mediation, there is typically one neutral mediator helping both parties, whereas in a lawyer-driven divorce, each spouse hires an experienced divorce attorney, totaling two lawyers.

Premise

A divorce attorney represents only one spouse, advocating solely for their client throughout the divorce. In contrast, using a divorce mediator means working with a neutral third party who doesn’t take sides. The mediator helps both parties negotiate and reach an agreement that serves the interests of both spouses and, if applicable, their children.

Approach

Lawyers give legal advice and guide their clients on decisions to make during the divorce proceedings. On the other hand, a divorce mediator allows the couple to have full control over the process, encouraging both to make their own decisions regarding property division, child custody, and other key issues.

Time to Completion

A lawyer-driven divorce can take anywhere from 18 months to 3 years to complete, especially if litigating a divorce in front of a judge. Conversely, mediation gives couples the flexibility to finalize their divorce in 2 to 6 months, often in 2 to 5 mediation sessions. The pace of this process is largely directed by the spouses. Once mediation is completed, the timeline for the divorce process depends on court filing and approval.

Cost

The cost of hiring a divorce attorney can be high. According to FindLaw, the median cost per spouse is $10,000 or more, meaning a traditional lawyer-driven divorce starts at $20,000 per couple. If the case involves a collaborative divorce, costs can range between $25,000 to $50,000. When a divorce goes to trial, expenses can soar from $78,000 to $200,000. In comparison, a mediated divorce generally ranges from $6,000 to $10,000, depending on the mediator’s experience, the complexity of the case, and the state in which the divorce occurs.

Certainty of Outcome

In a lawyer-driven divorce, the outcome is uncertain because the judge’s ruling on various issues is unpredictable. Lawyers may employ different strategies to win, which adds risk to the process. If you hire a lawyer who is not effective, it could lead to an unfavorable result. With mediation, the spouses outline the terms of their divorce agreement directly. This control over the process ensures that the final decisions regarding child custody, spousal support, and property division are mutually agreed upon, rather than imposed by the court.

Peaceful

Litigating a divorce is often adversarial and rarely peaceful. In contrast, mediation is cooperative, making it a more peaceful option that allows both spouses to resolve their differences amicably.

Confidentiality

Divorce litigation becomes part of the public record, which can expose private matters. Mediation, however, is confidential, keeping the details of the divorce private.

What is a Mediator, and What is the Mediator’s Role?

Mediation is a different process from litigation, and the role of the mediator is quite different from that of a lawyer. If you choose this option, you and your spouse will negotiate the settlement under the guidance of an independent, neutral third party, known as a mediator. The mediator’s role is to help both parties identify, negotiate and reach mutually acceptable agreements on the various issues and financial matters required to end their divorce.

The mediator works with the spouses to help both of them identify, negotiate and reach mutual agreements on all the relevant issues. Although the mediator is an active participant in the process, the spouses make the final decisions in negotiation with one another. The power of final decision is not handed over to a judge, and the divorcing couple thus has more say over their respective futures.

A family lawyer could serve as a mediator, but even people from other professions, such as financial advisors or mental health professionals, can fill this role.

Do You Need a Lawyer for Divorce Mediation?

While lawyers are not required in mediation, they can be beneficial. Your lawyer can guide you through the mediation process and offer guidance while evaluating compromises. Certain issues, while important to one party or the other, may be unlikely to get a favorable outcome when left to a judge to decide. A good family law attorney will advise you on these considerations, which can help you reach agreements in mediation.

When to Use Divorce Mediation?

Should I use a mediator for divorce? Here are some of the reasons to choose a divorce mediator rather than an attorney:

  • You would prefer to keep things peaceful. Along the same lines, if you decide you would rather keep things as friendly as possible, without the oppositional nature of litigation, mediation is the best option. You don’t have to be the best of friends or agree on everything, but you can end the marriage on a more peaceful note.
  • If money is an issue, litigation costs thousands of dollars. Mediation also comes at a fee, but it is much more affordable.
  • If you would like to wrap up the divorce as quickly as possible. Mediated divorces are concluded far more quickly than litigated ones.
  • When you think you can settle some of the issues. Mediation doesn’t have to be an all-or-nothing situation. If the parties have 5 items to resolve, for example, and mediation can bring an agreement to 3 of them, then only 2 outstanding issues need to be litigated in court. This can bring substantial savings to the overall process.

How to Find a Mediator in California

Westover Law Group is a company of family law attorneys serving Southern California. Considering divorce? Explore your options with us. Learn about the differences between mediation vs lawyer for divorce, as well as litigation and other potential solutions. Contact us today for more information.