When facing the difficult decision to divorce, many couples consider either litigation (each spouse uses their own attorney), or mediation (both spouses work with one neutral divorce mediator to reach an agreement) and usually believe these two options are exclusive of each other. While mediation tends to encourage cooperation and communication between spouses, an experienced mediator will never advise separating partners against seeking legal advice at any time during the divorce proceedings. In fact, family law attorneys are often involved at one step or another of the mediation process.
Unlike litigation, which puts both spouses on the defensive from the beginning, divorce mediation establishes a neutral and non-adversarial environment where spouses can reach a final marital settlement agreement (MSA) by resolving the many issues particular to each couple, such as division of assets, debts, bank accounts and retirement or pension plans, child custody, child support, and spousal support (aka alimony). The divorce mediator acts as a third-party negotiator, who guides separating spouses and helps them resolve any areas of conflict by encouraging cooperation and compromise. While divorce mediation can be a very effective way to handle divorce, it’s essential to remember that a divorce mediator is not acting as an attorney and can’t provide independent legal advice. Even if the mediation process goes very smoothly, the mediator will usually encourage couples to have separate attorneys review and explain the marital settlement agreement to them before they sign it.
Another time when consulting a lawyer may be useful is when spouses aren’t sure they’re getting the right results. They may seem to agree on an issue but still wonder if that decision will work long term for the specific situation. Additionally, an attorney is sometimes necessary when couples are left with a few issues they can’t seem to agree on during the divorce mediation process. While litigation of these issues in court will be a lot more expensive than mediation, sometimes a judge will need to step in and help couples reach an agreement.
Since trust is an essential part of the mediation process, it’s important to understand that mediation shouldn’t be encouraged for couples who have been involved in domestic violence or substance abuse, couples who have been affected by mental health issues, or if one spouse is trying to overpower the other. When a divorce mediator is asked to help those couples facing these sensitive issues that may require a lot of legal advice and possibly legal protection, he/she will advise them to seek individual attorney representation before attempting mediation.