How Lawyers Can Help in Divorce Mediation
By Amy Vandervort-Clark, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed July 13, 2023
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Using mediation services to settle your divorce is helpful in uncontested divorces. Mediation can save divorcing spouses time, and you may avoid going to family court.
The use of mediation in divorce cases has become more common. If a divorcing couple can resolve matters between themselves with the help of a neutral third party called a mediator, they can save legal fees on divorce litigation. They can avoid the nastiness of a litigated divorce with their former partner.
Many states now require divorcing couples to try court-ordered mediation before taking certain cases to court.
Before attending a mediation session, it's crucial to understand your position by asking:
- Is it better to take the matter to court?
- What should I ask for in mediation?
- What's the best negotiation strategy?
Individuals entering the mediation process often hire a family law attorney or a mediation attorney to coach them and provide advice. Understanding divorce law and what you are entitled to would be helpful.
What Is Divorce Mediation?
Mediation is a form of alternative dispute resolution. It is a private and informal way to settle conflicts outside of court. In divorce mediation, an impartial third party, the divorce mediator, helps a couple negotiate a fair settlement agreement. The issues you address during the mediation process might include the following:
- Property division
- Child custody and parenting plans
- Spousal support (alimony)
- Child support
- Financial issues, like retirement funds
Unlike judges, neutral mediators don't determine who gets what or how to divide assets. Instead, a successful mediation will help the divorcing couple reach a fair settlement agreement together.
Mediation occurs in several stages: introduction, information gathering, private meetings with the mediator, negotiation, and a final resolution. It can take many mediation sessions before the parties reach a divorce agreement.
The agreed-upon details are drafted into a memorandum of understanding (MOU). Once both parties have signed the MOU, it may become binding if filed with the court. This is where it is a good idea to have an attorney on your side to review the document.
If the mediation is unsuccessful, a couple can return to the more traditional process in which their lawyers negotiate and litigate on their behalf.
Mediation is not appropriate when a divorce is highly contentious, you are fearful of your ex-spouse, or you have experienced domestic violence. Consult an attorney before agreeing to the mediation process.
Do I Need a Lawyer for Divorce Mediation? What's a Legal Adviser's Role?
While you don't need a divorce lawyer in mediation, it can be a good idea to speak to one to know your legal rights.
If you underestimate the strength of your legal position, you may give up more than necessary. If you drive too hard a bargain, you may cause the other party to walk away from negotiations.
Before starting mediation, it's helpful to be familiar with your state's laws on marital property. Also, learn how child support is calculated and if you may be eligible for alimony or spousal support. An attorney can educate you on these matters and what you can expect from your divorce settlement.
An attorney can also assist you in the following ways:
- Explain the divorce mediation process, rules, and procedures
- Help select the best mediator for your case (if the court doesn't choose the mediator)
- Prepare you for mediation
- Help you decide potential settlements
- Review a proposed settlement for missing details or other potential issues
- Prepare formal divorce paperwork if you reach a mediated settlement
Be sure to have an attorney review the memorandum of understanding hammered out in mediation sessions before you sign it. They can check the document to make sure your rights are protected. Your attorney can formalize the memorandum into a marital settlement agreement.
How To Select a Divorce Mediation Lawyer
When choosing a mediation legal adviser, look for the same things you would when selecting any other type of professional: evidence of training and relevant experience.
Most divorce attorneys know about mediation and have experience working as mediation advisers. In many states, lawyers can get certifications in specialty areas. Consider hiring a legal adviser who has been board certified in family law.
While you will pay for these services, the attorneys' fees and the cost of mediation will be less than going through a traditional litigated divorce.
Related Resources
Questions About Divorce Mediation? Talk to an Attorney
It can be valuable to have legal advice when mediating a divorce case. An attorney will ensure that you know your rights and can negotiate from a well-informed position. Contact a local divorce attorney to help you achieve the best possible mediation outcome. A mediator cannot give you legal advice. Only an attorney can. Protect your rights and contact a divorce attorney near you today.
Can I Solve This on My Own or Do I Need an Attorney?
- You may not need an attorney for a simple divorce with uncontested issues
- Legal advice is critical to protect your interests in a contested divorce
- Divorce lawyers can help secure fair custody/visitation, support, and property division
An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.
Helpful Links
Don't Forget About Estate Planning
Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.
