Should you “lawyer up” with the best divorce lawyer you can find, or can you use a Family Mediator?
This is one of the first decisions you’ll make when facing a separation, and it’s a crucial one. There’s so much misinformation out there that it can be hard to make an informed choice. I see clients who retain divorce lawyers, but after spending much time and money they switch to the mediation process. But, I also meet with potential clients who aren’t good candidates for mediation and I strongly recommend that they contact a divorce lawyer.
Here are some questions you can ask yourself to determine which professional might be right for you:
Will your ex participate in mediation?
The actions of your former partner may force you to use divorce lawyers even if you’d prefer not to. Mediation is always a voluntary process, so if your ex outright refuses to participate then a mediator won’t be able to work with you. Similarly, if your ex is unresponsive and refuses to discuss anything then you may need a lawyer to demand information. In cases where you or your children are in danger you will need a lawyer to file motions that can begin to protect you and your assets.
What is the level of conflict?
Mediation can be a more obvious choice when things are amicable. Sometimes I have clients get along so well that they’ve already worked out nearly all of their decisions and are simply answering my questions as I write up their agreements. It’s not uncommon for these types of clients to need only a few hours of mediation and be finished within a few weeks.
Yet, you don’t have to be getting along with your ex in order to use mediation. In fact, those with a lot of conflict may get the greatest benefit from mediation. If you and your ex are embroiled in conflict it’s likely that this will only devolve into a lengthy legal battle. The legal system simply isn’t set up to allow for peaceful negotiations and conflict resolution. A trained family mediator will help you get to the bottom of what’s causing the conflict, how it can be resolved, and how you can move forward with some peace.
That being said, if the conflict has crossed the line into harassment, hiding finances, or other types of abuse then you may need to hire a lawyer to fight for your interests and protect you legally.
How complicated is your situation?
Most people entering a separation have property to divide, a parenting plan to make for children, and support to settle. In my practice this usually takes about 3, 2 hour mediation sessions. Things become more complicated if you own businesses, have a blended family, have lots of joint financial activity after the Date of Separation, or you want an “outside the box” solution for something. This could be something like a parenting plan that changes over time, or making alternate arrangements for support.
If the issues in your separation aren’t straightforward it can be extremely time consuming to work them out using divorce lawyers. You’ll also need to make sure that you have lawyers that are willing to work with you to consider solutions that may not be typical. Here, mediation can be a great way to be able to discuss issues directly with your ex, brainstorm solutions, and work out the details of what will work best.
For example, I worked with clients who had continued to make joint purchases together after they separated. This included a home for one parent to use for the children. Throw in mortgages for 3 properties, a small business, other debt, and a joint spending account and things were a bit of a mess! They were also far from amicable and were not communicating well. This would’ve been a recipe for disaster had they been trying to go back and forth between divorce lawyers. In mediation we were able to sit down with all of the numbers, piece out who was keeping what, and calculated a fair division of property within 2 hours.
What’s your tolerance for spending time and money?
The reality is that using a divorce lawyer will cost you more time and money than mediation. But, that might be worth it to you. In my area the total cost of my services is about the same as one initial retainer fee for a divorce lawyer. The amount you’ll spend will of course depend on the complications of your matter, but you can expect to spend at least double the cost of mediation for a simple matter. If things escalate then it’s not uncommon for legal fees to reach into the tens of thousands. For some, the high cost is worth it because they aren’t interested in meeting their ex in mediation and they want a lawyer to fight things out on their behalf.
Time lines are much the same. Mediation can be finished within weeks, and almost always within a few months. It’s unlikely you’ll see any resolution with a lawyer in less than 6 months.
Will you need to co-parent?
Yes, I’m biased, but this is an area where a good family mediator can make all the difference in your life post-separation. Lawyers are working within a process that is adversarial and positional, so it’s their job to “win” for you which usually means making the other person lose. It’s not their job to help you resolve conflict. A divorce lawyer will get you the separation agreement you need but may leave you with no way to co-parent afterwards. A mediator will help you resolve conflict, come to agreements, and mutually decide what’s best for your children. A great mediator will work with you to create a detailed parenting plan that will be the basis for a strong co-parenting relationship.
Choosing to use a family mediator doesn’t mean that you can’t also use a lawyer. You can get legal advice about your mediation before, during, or after the process. A lawyer will give you legal advice specific to your situation, letting you know what you might be in your best interest and what you could fight for under the law if you chose to do so. Conversely, you may retain a family lawyer, but use mediation services to resolve complicated issues that arise in the legal process. You and your former partner would enter into mediation to resolve a dispute about a specific issue and the mediator would provide a report back to the lawyers informing them of what you’ve agreed.
For example, I worked with clients who had been battling through lawyers for two years about parenting matters. Both of their lawyers suggested they try mediation and within two sessions they were able to negotiate a detailed parenting plan. My report went to their lawyers, who used it to quickly finalize their agreement.
Choosing a divorce lawyer or a mediator to lead you through your separation may end up setting the tone for your entire separation, divorce, and future co-parenting. It’s worth it to think carefully about the specifics of the situation, what your goals are for the future, and what seems like the best fit for you and your family.