These are tough economic times and people who are considering divorce are often concerned, with good reason, about what the divorce process will cost. Many of the clients coming to see me about divorce ask me about mediation as a possible low cost alternative to litigation. In the minds of some divorcing couples, mediation appears to offer the opportunity to avoid attorneys’ fees by using one lawyer for both the husband and the wife.
Mediation is not, however, a substitute for legal advice. To understand this, it is important to understand how mediation works and the role of the mediator.
When I act as a mediator, I help guide people through the divorce negotiation-I am, in effect, a facilitator of a divorce negotiation. I meet with the husband and wife together, typically without any attorneys present, and assists the couple in having a conversation about the issues that need to be resolved: division of property and debt, financial responsibility (child support and maintenance (alimony)), and parenting (child custody). At the end of the mediation process, I draw up documents containing all of the agreements reached by the husband and wife in the mediation sessions. I always suggest, both during and after the process, that each side consult with his or her own attorney.
When I serve as a mediator, I am not taking the place of a judge-I have no power to make decisions for the couple. In addition, despite my training and many years of experience as a lawyer, when I mediate I am not acting as the attorney for either the husband or the wife. Consequently, while I can provide legal information in my role as mediator, I cannot provide legal advice.
The other job I cannot do as a mediator is to file papers with the court. That must be done by attorneys representing the husband and wife or, if the parties choose, they may represent themselves (although I recommend consulting an attorney first).
Therefore, while mediation is a very good way to limit the amount of attorneys’ fees, it does not eliminate the need for legal representation. A good mediator will encourage divorcing couples to seek counsel before signing any agreements.
If you are considering mediation as a cost-saving option for your family, make sure you discuss with both the mediator and an attorney the roles that the mediator and the lawyers will play in the process. Sit down with a lawyer who can provide you with advice and then, if mediation is right for you, you will be in a good position to take advantage of mediation’s many benefits.
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