Mediation or Attorneys: 5 Things to Consider
By Andrew and Brian
The couple was at an impasse. It had been another difficult session.
Working with their mediator, they sought a fair and equitable division of marital assets and liabilities. Both had attorneys, but had chosen to use mediation to find an agreement.
The mediator felt it might help them to face reality. He said, “Take out your checkbooks. Write a check to your individual attorneys for $50,000. Here’s the truth: if you return to court with your attorneys to finish this work, it will cost much more than that. I’ll give you three minutes to decide.”
He left the room.
Three minutes later, he returned. The couple had resolved the impasse while he was out of the office.
Divorce is a difficult journey. It takes considerable time and energy to navigate the many emotions and changes that come with it. The process you choose can either add to the conflict or help to diffuse the challenging moments. Adding legal conflict to your plate can be overwhelming. How you approach divorce is worth taking time to investigate your options.
Here are five things to consider about Mediation before you consider using an Attorney:
1. Cost
Attorney: As the illustration above noted, the litigative process inherently costs more. Attorneys can only work with one party, meaning each spouse will need one, and your cost is doubled. Attorneys cost more per hour than mediators, charging for time in increments of 5 minutes. This includes almost every interaction you have (even short emails, phone calls).
The two most expensive aspects of litigation are Discovery and Trial days. Discovery is when each party's attorney asks for all financial, psychological (as needed), and child-related information. The discovery process involves their legal team processing and examining all the info collected, making summaries, and building the info needed to support the position of your case they have recommended. The Discovery process can cost anywhere from $3000-$5000 sometimes more. A single day of Trial is $5000+. On average, most attorney-led divorces with clients who have families cost $20,000-$40,000.
Mediation: The same $20,000-$40,000 attorney driven case will cost, on average, $3000-$5000 with us in mediation. How is that possible? Other than the obvious lack of any form of trial, mediators cost at least $100 less per hour and have a more simplified version of discovery. Additionally, instead of two attorneys, you only have one mediator, a neutral party, who works with both spouses equally.
2. Better for Your Kids
Attorney: Litigation is adversarial by nature, and often increases tension and conflict between spouses. The emotional cost is high. It often overflows into the couple’s parenting, decision-making, friend groups, and even extended family. All this extra conflict then lands in the home while your kids are watching and listening.
Mediation: Designed to be solution-focused, it often reduces hostility and prevents additional relational damage. By creating microagreements along the way, mediation moves the couple toward greater collaboration. This keeps the couple goal-oriented and aware of their children. There is internal space to remember that the most important people in the room are the kids.
For those with children (young or old), our role as a family first mediation is to prepare you for this fact: You will be co-parenting for the rest of your lives. Whether it’s children in the home, adult children, or even grandchildren, you will need the communication and conflict management skills mediation can provide.
3. Decision-Making Power and Flexibility
Attorney: The attorney advises you on your “best legal path forward.” They will then build a strategy leading toward a trial based on defending that path/outcome. In this moment, you release control. Your attorneys' next steps move you into the litigative process, which includes filing various motions that the process requires, emailing with the opposing attorney, all the while charging you by the minute.
Mediation: You and your Spouse/Partner make your own informed decisions with the help of a neutral mediator. You can be creative within state guidelines, you can focus on your children’s experience, and you control the outcome. You set the pace and timeframes.
4. Quicker Results
Attorney: This is determined by the litigative timeline. Most states start the process with a petition by one of the parties (petitioner). The other party (respondent) usually has at least 30 days to respond. No work toward your settlement has even begun at this moment. Following the petition and response, the discovery process begins. Usually, the first hearing does not occur for 3-6 months, with the trial set at least 3 months beyond.
All that is without any reschedules. Generally speaking, judges typically allow at least one reschedule for each party. They allow more if the circumstances warrant it. It is not uncommon for divorces to take 12-18months, some even 2-3 years.
Mediation: Moves as quickly as the participants can make decisions and gather the needed settlement information. Most cases begin by meeting with the mediator multiple times within the first month, actively working on their Parenting Plan and/or settlement. In some cases, the meditative process can finish in a month, moving into document drafting, then filing. Most mediated divorces take 3-12months, with the 8-12 month cases usually involving the sale of the primary residence or more complex asset/debt portfolios.
5. Privacy
Attorney: Court proceedings(hearings, trials, etc) and documents required for filing are generally part of the public record.
Mediation: Private and confidential. Discussions, notes, and agreements other than signed and required court documents that are filed stay out of the public record.
No one goes into marriage planning to get a divorce. Regardless of what brought you to this moment, divorce is a hard decision. If you would like to learn more about our meditative process, we provide free consultations for both parties.
Please contact us if you have questions.
