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Mediator Vs. Divorce Lawyer: Which One is Right for Me?

Pen and rings on divorce paperwork

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Mediator Vs. Divorce Lawyer: Which One is Right for Me?

A Mediator is a neutral third party who helps parties work together to resolve the outstanding issues in their case. They do not provide legal advice or counsel to either party. A Lawyer represents a specific party in the litigation. They provide legal advice and counsel to their clients. The right one for you depends on your needs.

Do you need someone to help you and the other party hammer out a settlement (Mediator)? Or do you need legal advice and guidance (Lawyer)?

This article aims to help parties understand the difference between the role of the mediator and the lawyer’s role. It is easy to confuse the two because often, mediators are lawyers and lawyers often serve as mediators. This is the usual path for the professional because the experience obtained while practicing as a lawyer usually strengthens their skills as a mediator and vice versa.

But, when deciding between the two, it is crucial to understand the differences, and you need to understand the professional’s role in your case when you hire them.

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What Do Mediators Do?

As mentioned above, a mediator is a neutral third party who helps parties reach a settlement on the outstanding issues in their case. A mediator does not provide legal advice to either party.

For example, Husband and Wife are getting a divorce.

Husband and Wife (“the parties”) go to divorce mediation instead of taking the traditional litigation route in the courts. They both agree and select a mediator to conduct their mediation sessions.

On the day of mediation, the mediator works with both parties to work through the unresolved issues in their case. The mediator goes back and forth between rooms to deliver settlement offers and counter-settlement offers.

But the real benefit of the mediator is that they use their experience to help the parties overcome hurdles to settlement in providing the offers between the rooms.

The most important thing to note in the example above is that the mediator will not give either party legal advice nor “represent” either party. Even if the mediator is also a practicing attorney, while serving as a mediator, they will not give legal advice to either party.

What Do Divorce Lawyers Do?

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A lawyer provides legal advice to their clients and represents them in court during their litigation. They represent the interests of their clients and are not neutral in the case.

For example, Husband and Wife are getting a divorce.

Husband hires a lawyer. The lawyer explains the law to Husband and applies Husband’s specific facts to the law, and advises the Husband accordingly.

In most situations, the lawyer is hired to ensure compliance with procedural rules and represent Husband in court and in mediation. Husband brings a lawyer to mediation so that Husband has a representative focusing on Husband’s interests and providing legal advice.

The critical thing to note in the example above is that the lawyer is not neutral.

Husband hired a lawyer to represent his individual interests. Even if the lawyer serves as a mediator in other cases, they will not serve as a mediator in a case where they represent one of the parties because they are not neutral to the case.

In the end, both professionals can help divorcing couples with things like the division of assets, child custody agreements, and other divorce issues. Just be sure you understand the professionals role in the case. There are quite a few reasons why you could use mediation for your divorce process. Some couples, however may not be a good fit, such as in cases where there is a history of domestic violence or domestic abuse.

Before deciding between divorce litigation or mediation, there are some questions you may want to weigh.

Factors to Consider When Deciding Between a Mediator and a Divorce Lawyer

When deciding between hiring a mediator or a divorce lawyer, you really need to ask yourself what you need.

Are you looking for someone to help you and your soon-to-be ex-spouse reach a settlement and do not feel like you need advice? Then a mediator may be a good fit.

Or, in order to reach an agreement and resolve your case, do you need advice and guidance? Then you want to explore a lawyer.

Keep in mind just because you hire a lawyer does not mean that you cannot employ a mediator.

Hiring a lawyer often makes you better prepared for a successful mediation. As attorneys, we promote mediation and often go to mediation with clients to advise them. In divorce proceedings, mediation often offers the best resolution to a case.

Similarly, most of the time, even if you want to go to mediation, you can still hire a lawyer.

But check with the mediator before you unexpectedly show up to mediation with a lawyer to avoid having to reschedule the mediation. Some mediators require advanced notice of representation.

This is a mediator-specific issue, so check with them ahead of time.

Some mediators require advanced notice of representation because when parties think they are going to mediation without lawyers and then a party shows up with a lawyer, it weakens the trust in the mediation process.

The other party can feel defenseless. Sometimes, the mediator will cancel the mediation and reschedule it to allow the other party an opportunity to obtain their own counsel. This wastes everyone’s time and increases expenses.

On the other hand, if people want representation, they should be able to do so, even if it causes a delay. Be wary of circumstances where you want legal advice but are forbidden to do so.

Get the Best of Both Worlds with a Mediator Who is Also a Divorce Lawyer

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If you decide you want a Mediator, look for a mediator who has experience with divorce law.

Divorce lawyers often expand their practice into mediation services because they know the law and they have been to many mediations themselves. They also know the common issue people run into and what solutions to those issues work and don’t work. Similarly, a divorce lawyer who is also a mediator knows both sides of the mediation and how to best prepare for the case.

The most important thing to know is what role that person is serving in your case. Again, if you are looking for legal advice, you need to hire an attorney to represent you as your attorney. If you are looking for someone to help you and your soon-to-be ex-spouse resolve your contested issues, consider hiring a mediator.

If you’re in the process of finding someone to help you work through your divorce options, we recommend checking out this list of questions to ask a divorce mediator. If you’re interested in learning more about mediated divorces, check out our guide to everything you need to know about divorce mediation.

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Final Thoughts

Mediators and lawyers play an important role in a divorce case, and you must know what role that person is playing in your case to work toward a desirable outcome.

Mediators are valuable professionals and are often the go-to option for getting a quick resolution in a divorce, but they will not provide you with legal advice. If you want legal advice, you should hire a lawyer.

If you are considering mediation for your divorce in Arizona, BTL Family Law is here to help. Contact us today to learn more about our mediation services and how we can assist you in reaching a fair and amicable resolution.

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