Choosing the right person to help you resolve your divorce is important. In this Divorce Academy video, Kevin explains the differences between a divorce lawyer and a divorce mediator, and helps you figure out which one is right for you.
Hey everyone. Welcome to Divorce Academy. I’m Kevin Handy, I’m one of the attorney mediators here at SnapDivorce. Today, I’m going to be talking about the difference between a divorce mediator and a divorce lawyer. If you’re just getting into the divorce process you’ve probably heard about mediation and you obviously have a good idea of what a divorce lawyer is. I’m here today to sort of explain the differences between the two and give you an idea of which is going to be right for you, for your divorce.
What is the Difference Between a Divorce Mediator and a Divorce Lawyer?
I set it out into categories: Divorce mediator and divorce lawyer. The first thing I’m going to start with is the differences between the two. The first difference is, a mediator is going to give you guidance and a lawyer is going to give you representation. Those two things are very similar but slightly different. With guidance, a mediator is going to sit down with you and your spouse and they can give you real guidance as to how the divorce process works, how your case might come out – if you were to go to court. They will give you an opinion on how equitable distribution will be decided, how much support you might have to pay, those sorts of things.
A lawyer is going to be a little different, they are going to represent just one of you. That means you will meet with a lawyer and they will give you specific legal advice. Say, “Hey this is what the numbers will be that you have to pay in support, but if we argue this or that, maybe we can try and get you to pay less.” They are going to be more – and this gets into my second difference- a lawyer is going to be an advocate for you. They are going to argue the case on your behalf. They are going to try and get you a better deal, and negotiate for you.
Whereas a mediator is going to act as a neutral party to try and bridge the gap between you and your spouse. If you sit down with a mediator and maybe you’re talking about support or equitable distribution, they are going to try and say, “Look you could take this position, and your spouse could take that position, but if you go to court this is going to be the realistic outcome. This is where you are likely to settle your case, and this is where I think you guys should try and work things out.” A lawyer is going to take an extreme position.
When you are acting as a lawyer in a case (again take child support as an example) may be based on the facts of the case, the guidelines which are just that the child support is supposed to be 1,000 per month. Well, the person who is paying child support, their lawyer may argue, well my client is not making as much money, he’s not going to get his bonus this year, it should only be $500 a month. On the other side, the person receiving the child support, their lawyer is going to take a position that says “oh no, no, no, we think you are doing really well, you should get the second job, we think child support should be $1,500 per month. They take these extreme positions and then eventually they negotiate down to the $1,000 per month. Whereas, you could have gotten there much quicker by using a mediator. That’s just the way litigation divorce lawyers work.
Another difference is (and this is an important one to pay attention to) with mediators there are no real standards for how someone becomes a mediator vs. a lawyer who has to be licensed, they have to have gone to law school. Most of the divorce lawyers you are going to meet with have been practicing for years, they’ve been in court, they’ve litigated cases. This difference may surprise you especially when it comes to the mediators. Really, most states don’t have any standards for who can become a mediator. You have people who have gone through a divorce that think they are now qualified to become a divorce mediator. You have psychologists that are getting into it, saying “Oh, I will do divorce mediation as a separate part of my practice.” Financial planners are always trying to get into mediation. But you have to be really wary of those types of people because they haven’t been to court, they don’t know the law, they are just trying to act as a negotiator. They don’t have the background, or the framework to be able to do it right.
Is your Divorce Mediator also a Lawyer?
If you’re going to use a mediator you want to make sure that the mediator you are using is also a lawyer, and has also been practicing divorce lawyer, that’s really important. That’s a big difference between a divorce mediator and a divorce lawyer.
Similarities are that they are both going to get your case done. The mediator is going to get you through it. They are going to help you negotiate your case, draft up the property settlement agreements, process the divorce. The same thing with lawyers, if you and your spouse both have lawyers, you are going to get through the case. It may take a little bit longer, which I will discuss in a minute, but they are both going to get your case done relatively easily.
What is the Cost Difference Between Divorce Mediation and Litigation?
Another difference between the two is cost. Your average divorce litigation costs $25,000 per side, so that’s about $50,000 total. That’s an average for divorce litigation. Compare that to the average cost for divorce mediation which is about $5,000-$7,000, and that’s total. That includes everything that’s needed to get your divorce done: the mediation sessions, the drafting of the property settlement agreement, custody agreements, filing fees for the divorce. So, that’s an all-in price. That can vary a little bit. If you have a simple divorce it might cost as little as $1,500. If you are very complex maybe you are looking at $8,000-$9,000 tops. But really 95% of cases are going to be in that $5,000-$7,000 range. That’s a huge difference considering the average cost of divorce litigation is about $25,000 each side.
How Long Does a Mediated Divorce Take Compared to Divorce Litigation?
Time-frame. Another big difference. 2-3 years for a litigated divorce, and about 6 months for a mediated divorce. You may ask yourself, “Why the difference in cost and time between a lawyer and a mediator?” It’s a good question. You have to think about how divorce litigation works and if you both have lawyers. Every time you want to communicate a message to the other side, you have to talk to your lawyer, and then your lawyers drafts up a letter to send to the other side. Then your lawyer sends it to their lawyer, and then their lawyer reviews it, and then their lawyer discusses it with your spouse, and then your spouse discusses his/her reply with their lawyer. To get communications, everything takes 5x as long and is 5x as complicated because you are using lawyers. You are going through these people that are going to be advocates and they are discussing the strategy with you. Everything is like that in divorce litigation, it gets very expensive, and everything takes a really long time.
Whereas, in divorce mediation, you are going to have 1, 2, maybe 3 mediation sessions. You sit down for an hour to two hours at a time, and you are going to get your case worked out, so it’s a lot quicker, and a lot cheaper.
Your and Your Spouse’s Personalities are a Major Factor in Determining if Divorce Mediation is Right for You
Another difference between a mediator and a divorce lawyer are the types of people who use them so I wrote down personalities here. With mediation, you have to be level headed. You may still be upset with your spouse, you may not want the divorce, you may be unhappy in some respects, but at least you can think, “look this is going to be a business transaction, we are talking dollars and cents here. We have to figure out how to divide our property – calculate support. I’m going to get through it. Versus people who end up getting divorce lawyers, one of the spouses tends to be really angry about the divorce, out for vengeance. They want to show their spouse that they’re right or punish their spouse. That type of personality is going to go out and hire a divorce lawyer. If your spouse does that, you’re just kind of stuck. You are going to have to hire a lawyer to represent you on the other side.
That same personality, or those same type of people, they get the idea that they can win their divorce. I see this frequently in my divorce practice. Someone will come in and say, “I know I’m supposed to pay alimony. I know it’s supposed to be a 60/40 case. I’m hiring you because I don’t want to pay my spouse alimony, I’m not going to give them my property. I want to win at my divorce. They just get this mindset- they’ve seen too many TV shows or movies- and they get the idea that “hey if I hire the really slick, shark attorney, I’m going to be able to beat my spouse. I’m going to be able to win, and I’m going to beat the system.” It just doesn’t happen. But it is very, very, difficult to get that idea out of certain people’s heads. If your spouse is in that category, you are going to be going down the lawyer route. In comparison, the people who use mediators are willing to compromise. They accept that there are going to have to be some financial concessions. They realize that the divorce laws are guided and they are really not going to be able to wiggle out using a slick attorney.
Ready to move on. If you and your spouse are ready to move on – you know your marriage is over. You may not be happy about it but you realize that that’s the path is going towards, then you are a good candidate for using a divorce mediator. Versus people that use lawyers, one of them tends to have some sort of psychological problems. The one I see the most is a narcissistic personality disorder. They are controlling, unwilling to accept compromise. Other people are just psychologically not really to move off the marriage. You have to think if you’re the one that has brought up the topic of divorce, and you’re saying, “I want a divorce.” You are two or three stages ahead. You’ve been thinking about this for a while. Your spouse may not be ready for that. That may hold them back. The idea might be new to them, so they may end up using a lawyer.
Need for hand-holding. If you’re one of those really nervous people, or your spouse is, and you have to have somebody hold your hand through the divorce process, you’re probably going to end up needing a lawyer. Versus, if you are able to make independent decisions, then you can go the divorce mediator route.
Finally, physical abuse. Look, physical abuse is a reality in a small percentage of marriages. If there is physical abuse in your case, you are going to have to use a lawyer. You are just not right for mediation. Whereas, if there is no physical abuse, you can fall into the mediator category.
The Bottom Line
Look, what’s the bottom line? The bottom line is that probably 95% of people are going to be better off using the divorce mediator route. You are going to save time. You are going to save money. You are going to get the guidance you need. But there is that small percentage of people that are going to have to spend the money and take the extra time and use a divorce lawyer.
If you’re a little nervous and you say, “Hey, I like the idea of a mediator but I kind of really do want some hand-holding, and I want to feel like I have some sort of knowledge of the process and to have someone just representing me.” What I would suggest you do, is go out and you pay for a divorce consultation with a divorce lawyer. If you feel the need to, you can have that divorce lawyer work in the background. That way, you still go through the mediation process, and you just run some things through your divorce lawyer. Maybe do a consultation at the beginning and then you talk to them at the end about whether your agreements are reasonable. That’s only going to cost you maybe $1,000 total, so you’re going to save a huge amount of money doing it that route. You’ll still get some of the benefits of the lawyer, but you’re going to get all the benefits of divorce mediation.
That’s really the difference between a mediator and a divorce lawyer. I hope this has been helpful, and we’ll see you next time on Divorce Academy. Thanks!