“If I’m going to mediate my divorce, why do I need a lawyer, too?” It’s a logical question. Many mediators are lawyers. If you have a mediator who is also a lawyer, it’s natural to assume that you don’t need to hire a lawyer AND a mediator for your divorce mediation.
I mean, why hire two people when one person alone could do the job?
The answer is simple. The role of a divorce mediator is very different from the role of a lawyer. One person can’t do both jobs.
Divorce lawyers and divorce mediators play two entirely different roles in divorce. To understand why one person can not be both your divorce mediator AND your lawyer (and why you should run away from anyone who tells you that s/he can do both jobs for you) you need to understand a little bit about the divorce mediation process.
The Role of a Divorce Mediator
The role of a divorce mediator is to help you and your spouse reach an agreement.
To perform that role effectively, the mediator has to be independent. That means that the mediator does not represent you or your spouse. The mediator is neutral.
Because a mediator is neutral s/he can’t give either you or your spouse legal advice. The mediator can not tell either you or your spouse what you should do to get the best deal. Doing that would destroy the mediator’s neutrality.
A mediator does not take sides. S/he is not there to see that anybody “wins.” The mediator is focused solely on helping you and your spouse negotiate with each other so that you reach an agreement. How that agreement shakes out is up to you and your spouse. (Of course, if the agreement you’re making is really one-sided your mediator will probably urge you and your spouse to talk to a lawyer before you go farther.)
Another important thing to realize is that a mediator can not force you and your spouse to make an agreement. S/he can only work with you and your spouse to try to help you and your spouse find common ground and settle your issues. If you don’t reach an agreement, then your mediation will fail. If that happens, your divorce will end up back in court for a judge to decide.
The Role of a Divorce Lawyer
The role of a lawyer in the divorce mediation process is to be your adviser and your advocate. Unlike a mediator, your lawyer is not neutral or independent. Your lawyer represents you.
In your divorce, your lawyer will advise you about the law in your state. S/he will also help you understand how the law applies in your case. Your lawyer will make sure you understand the kind of result that you might get if you went to court. (Of course you never really know what would happen if you went to court unless you actually go to court. But your lawyer can still give you a general idea of what would probably happen if you went to court.)
Your lawyer will also help you identify your objectives for mediation. S/he will help you figure out what you want to achieve. S/he will also help you make a plan and devise a strategy so that you can achieve your mediation goals.
How The Divorce Mediation Process Works
During the divorce mediation process, you and your spouse meet in the mediator’s office and discuss your divorce. The mediator will probably want to know what you and your spouse each need and want in your divorce. The mediator will then help you and your spouse brainstorm creative options for resolving your issues while meeting as many of both of your needs and wants as possible.
Typically, lawyers do not attend mediation sessions with you. The only ones who are in the mediation sessions are normally you, your spouse, and the mediator.
That is one reason why it is so important that you spend time with your lawyer before the mediation process actually begins. You have to understand how the law works, and what your rights and responsibilities are BEFORE you start mediating! Otherwise, you’re likely to either give up the farm, or make totally unrealistic demands, because you don’t know what you are really entitled to get.
If you and your spouse reach an agreement in mediation, the mediator will write up your agreement for you. Your mediated agreement will likely be called “A Memorandum of Understanding” or a “Mediated Settlement Agreement.” You can then take that agreement to your lawyer. S/he will review it and make it a part of your final divorce documents.
If your mediation is not successful, your lawyer will still continue to represent you in court. Ultimately, since most divorce cases settle before trial, your lawyer will very likely try to negotiate a settlement for you at some point. If your case doesn’t settle, then your lawyer will try your case.
Why You Need a Mediator and a Lawyer
Because a lawyer and a mediator serve very different roles, to mediate your divorce effectively, you need both a mediator and a lawyer.
In order to be able to negotiate your divorce, you have to first understand your legal rights and responsibilities. You have to know things like how child support will be calculated and whether spousal support will be an issue in your divorce. You need to know your options for dividing your property given the law in your state. In short, you need to know the basics of what you will likely be entitled to get and what you will likely be required to give in your divorce.
Legal advice fills in that gap between what you know when you start your divorce, and what you need to know to negotiate your divorce without losing your shirt. Because the mediator can not give you legal advice, you need a lawyer to do that for you.
You also need a lawyer to draft all of your divorce documents for you. In most places, the only document your mediator will write for you is your Mediated Settlement Agreement i. But that is only one of the documents you need in your divorce. You need a lawyer to draft everything else.
Now, at this point, you may be thinking, “Okay. So I need a lawyer. But, if I’m going to be negotiating in mediation anyway, why do I need a mediator?”
The answer is simple. If you and your spouse could have worked out an agreement on your own, you already would have done that. THAT’S why you need a mediator.
Of course, you could just let your lawyer do all of your negotiating for you and skip mediation altogether. But doing that has some serious downsides.
Should You Ditch Mediation and Just Let Your Lawyer Settle Your Case?
Letting your lawyer negotiate your divorce is incredibly expensive. Every time your lawyer picks up the phone, or reads an email, or writes a settlement proposal, you pay for his/her time. Since few cases settle after a single round of negotiations, your legal fees will quickly start to skyrocket. That’s the first reason that mediating your divorce makes a lot of sense.
Letting your lawyer negotiate your divorce is also wildly inefficient. It’s like playing a giant game of “telephone.” First, you have to talk to your lawyer. Then your lawyer talks to your spouse’s lawyer. After that, your spouse’s lawyer talks to your spouse. Then the whole process reverses itself. Not only does this method of negotiation take a ton of time, but it also lends itself to misunderstandings. With so many people transmitting messages, it’s easy for what is being said to get messed up.
A mediator puts everyone in the same room at the same time. That ends a lot of miscommunications and usually helps you settle your divorce much more quickly.
Another benefit of mediation is that it promotes adherence to your agreements. That’s a fancy way of saying that you and your spouse are much more likely to abide by the agreements you make yourself.
While that might not seem like a big deal to you now, what you don’t know is that a substantial number of people end up back in court after their divorce has been granted! They keep fighting over what the agreement means, or whether one or the other of them is doing what they’re supposed to do.
You are much less likely to return to court after your divorce if you mediated your own divorce agreement than you are if your lawyer negotiated an agreement for you.
Hiring a Divorce Mediator and a Divorce Lawyer
All in all, while hiring a mediator and a lawyer might not be what you ever wanted to do, chances are that getting divorced is something you never thought you would do either. If you choose to use mediation to get through your divorce, hiring separate professionals to mediate your case and advise you about your legal rights, is absolutely the smartest thing you can do.
Updated Oct. 10, 2019.