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How to Choose Between Mediation and a Divorce Lawyer

Mediation has many benefits when compared to litigation.

Why use professional mediators?

Generally, mediated settlements are reached more quickly and peacefully and less expensively than settlements negotiated between lawyers, especially after suit is filed. Learning how to co-parent after divorce best begins during the facilitated mediation discussions and negotiations not during lawyer negotiations or litigation. Isolina Ricci said it well in her best-selling book Mom’s House, Dad’s House: “A first-class legal agreement is at best a good piece of surgery. It does not guarantee recuperation. The agreement is not enough. Parents need to learn how to make agreements work in daily life.”

What's the difference between a mediated settlement agreement and an agreement negotiated and drafted by lawyers?

The mediated interaction of parents leading to a legal written settlement contract is the beginning of a new working relationship. Whether drafted by a mediator, lawyer or the parties themselves, an agreement which contains all the elements of a binding contract is just that, a binding contract. Learning how to co-parent after divorce best begins during the facilitated mediation discussions and negotiations not during lawyer negotiations or litigation.

After your mediated agreement is drafted by the mediator, reviewed by you and things have therefore calmed down, we then encourage you to have the proposed agreement reviewed by your personal attorney before you sign it.

How does mediation work?

“How can I help the parties craft an agreement that, based on what’s most important to each of them,  incorporates as many of their personal interests and needs as possible?” is the question our experienced mediators seek to answer when reviewing your situation.

If things are to the point you need help, an atmosphere that maximizes your changes for a good settlement is a safe place to be. We assure you of that atmosphere. The mediator, by listening to each party’s story or narrative of events, will start the process of finding a creative solution acceptable to both parties. Settlement agreements reached in mediation often contain terms unique to the parties, terms that a judge could not and would not award, but which, like any contract that has been agreed to by the parties, will be enforced by the courts.


How would my settlement agreement be restricted by the courts?

Judicial decisions are limited in two significant ways: By the limits imposed by statutes and prior court cases, and by the practical constraints on how much detail a judge is willing and required to include in his ruling.

Your lawyer will listen to your narrative of events based on the lawyer’s experience as a litigator, and will ask himself or herself: “How does this client’s story fit into the substantive law and how will I, as this client’s lawyer, present those pertinent facts as admissible evidence in order to win in court or to extract the best settlement from the other side?” The lawyer extracts from your narrative facts the lawyer deems pertinent and reconstructs and condenses (re-writes) your story based on your lawyer’s opinion of what’s relevant under the substantive law and what admissible evidence supports that re-written, condensed story about your rights under the substantive law.

The same complexities regarding the law and your finances make putting the evidence before the judge very expensive. The informality and confidentiality of the mediation process allow for a quick and yet detailed review of finances and options.


Should I consult a lawyer?

Your meeting with a lawyer will be most productive after you and the other party have a clear picture of the facts as each party sees them and an understanding of the issues that each party wants to resolve. Mediation can accomplish these two things cost-effectively in a timely manner. And while our experienced, knowledgeable mediators can tell you about the laws that may affect your case, only lawyers are allowed to give you legal advice on how the law applies to the facts of your particular case.

To learn what you can expect from a judge, at a certain point during the mediation process it’s a good idea to consult a lawyer. They can tell you how the law applies to your particular facts, and give you an opinion of your best case and worst case outcomes. Mediation is still available as a faster, less stressful way to resolve the conflict. Once you know what you expect from the judge, that expected result can become your one of your goals in mediation as well. If your goals aren’t reached in mediation, you can always proceed to the litigation of your case in court.

What should I expect from my lawyer?

Carefully consider what you want from a lawyer. Be clear with your lawyer about your expectations and the cost.

If you want to stay in control or at least be kept fully informed, use this checklist as you choose a lawyer and as you assess the progress of your case:

A Client’s Bill of Rights:

Use Counseled MediationTM if I ask for it

Focus on facts, finances, funds, feasibility, fairness & future

Inform me promptly of what to expect and status

Send me copies of everything

Send me a monthly detailed bill

Respect me & my right to decide

Be honest & frank in assessing my case

Explain the range of outcomes/results from best to worst

Explain the stakes & odds along my range of outcomes

Be my advocate, zealously seek a quick, fair settlement

Keep my costs low without jeopardizing my case

Be accessible when I need to speak to you

Help me do a cost-benefit analysis to avoid spending more money on the negotiations and litigation (the “cost”) than the money at issue (the “benefit”).

©2010 A. Blanton Massey

Consulting a Lawyer: What You Need to Know

Lowest Level of Commitment: No Retainer; No Ongoing Relationship

We do not recommend using an attorney in this capacity during the mediation process.

Without a retainer, you cease to be a client when you leave the office; this affects your ability to get scheduled or have your call returned should you want additional services from the firm. Since there is no ongoing relationship in recognition of continuing to advise you, or the possibility of continuing services, they have no obligation to return your call, or to revisit your case in a timely fashion. In trying to schedule an appointment to see the attorney, you will likely find that the attorney cannot fit you into their schedule to see you for a week or more.


Ideal Level of Commitment: Modest Retainer & Limited Ongoing Relationship

The most cost effective way to engage a lawyer during mediation is retain a lawyer, who will then engage in only the actions you request.

There is usually little attorney involvement at the beginning of the mediation process. First, the parties must gather their facts by completing their own informal “discovery” of expenses (budgets), listing and valuing assets, checking out balances owned on mortgages and credit cards, etc. The facts disclose what options for settlement exist; and it is time at to obtain meaningful legal advice. Consulting an attorney to learn how the law applies to those facts before negotiating a settlement in mediation is key to a successful agreement.

A retainer lets the attorney understands that you plan to contact that attorney for legal advice on an ongoing basis, which request you would typically initiate. The retainer is held in the attorney’s trust account and as you get advice from the attorney, the attorney bills you and transfers earned funds from his trust account into his “professional” account.

The fee agreement could provide that the attorney would attend mediation with you or only advise you between sessions. If the attorneys don’t attend mediation sessions, both parties could agree that the mediator will send summaries of each session to the attorneys. If you chose not to have your attorney attend the mediation sessions with you, but want legal and negotiation advice and coaching from your attorney during mediation, then read our handout on how to assure yourself of getting that advice.


Highest Level of Commitment: Large Retainer, Greatest Involvement of the Lawyer

We recommend that you hire an attorney to give you advice during mediation.  At this level the lawyer becomes much more involved in your case; consequently amount of attorney’s fees billed will increase as well. Should you choose to go the route, the important thing is that you be clear with the attorney about the level of their involvement, and your expectation of the prompt return of phone calls and scheduling of meetings to review the progress of mediation as you feel the need and as the mediator recommends.

There is often a misunderstanding about the need for interaction between mediator, clients and their attorneys. Some attorneys feel that you either participate in mediation or you hire the lawyer to direct the process of disengaging from the marriage legally. It is important to be in agreement with your lawyer on this point.

The representation agreement you sign should direct the attorney to take some specific action for you, such as:

  • attending mediation with you.
  • negotiating with your spouse’s lawyer.
  • filing a divorce action in Circuit Court.
  • filing a petition for custody, visitation or child support in the Juvenile and Domestic Relations District Court.