Divorce mediation is becoming a hotter trend than ever among couples who have decided to call it quits. Most people want to avoid a protracted legal battle over assets, alimony, and child custody. They realize that going to trial over their disagreements is unlikely to make them happy. If anything, doing so will only increase the cost of their divorce.
An alternative to going to court is to hire a mediator. This person oversees the settlement negotiations. He or she helps you and your future ex-spouse maintain a productive discussion. The mediator’s goal is to guide the discussion toward solutions that work for both of you. Unlike a divorce court judge, the mediator doesn’t decide on any of the matters discussed. He doesn’t issue any rulings. Instead, he’s a facilitator while you and your spouse talk through your options and choose those that make the most sense given your circumstances.
One of the most common questions divorcing couples ask is whether they need to hire attorneys if they intend to go through mediation. We’ll address this question in detail below. We’ll first describe the mediation process before taking a close look at why hiring an experienced lawyer is a good idea.
How The Divorce Mediation Process Works
Mediation usually starts with the mediator gathering details from the spouses about the issues in dispute. Sometimes, this information-gathering stage is done with all parties present, including both spouses’ lawyers. Other times, the mediator will want to meet with each spouse privately to discuss matters.
After the issues in dispute have been discussed and the mediator understands both parties’ perspectives, he (or she) will encourage the couple to discuss them, one at a time. A common approach is to resolve small disagreements first and tackle difficult ones later. Doing so allows the spouses to gain a sense of working together toward a common goal.
Compromise is a critical aspect of divorce mediation. Both parties should be willing to concede ground on some matters in order to obtain what they want in others. This process gradually results in a settlement agreement that both spouses can live with. The agreement is eventually filed with the courts in order to finalize the couple’s divorce.
The Role Of Attorneys During Divorce Mediation
Neither party is required to have an attorney present at the mediation sessions. Whether they attend is left to the discretion of the spouses. They can agree to keep the sessions between themselves and the mediator, and consult their respective attorneys afterward on specific details of the proposed settlement.
If one party is adamant that his or her lawyer attend the mediation, the other party would do well to follow suit. Doing otherwise would put him or her at a disadvantage.
Having said that, the sessions are unlike a trial. If one of the spouses comes alone and is unable to effectively communicate his or her position on a particular issue, that issue can be revisited when both parties’ lawyers are present.
A lawyer’s role during mediation is usually that of an advisor. He answers his client’s questions, provides advice related to his client’s legal rights, and makes recommendations based on his client’s goals for the settlement.
Reasons To Hire A Divorce Attorney
Many couples opt to go through divorce mediation without legal representation. They assume they’ll be able to resolve their disagreements with the help of the mediator. Although that might be true, it’s important to realize that the mediator’s job does not include protecting either party’s rights. One or both spouses may unwittingly give up some of their legal rights while negotiating the settlement. Once a judge signs off on it, the agreement becomes enforceable.
The problem described above is one of the many reasons both parties in a divorce should hire lawyers, even if they plan to rely on mediation to resolve their differences. A lawyer can review the proposed settlement agreement and advise his client regarding his or her rights. He can also offer suggestions during the negotiations regarding how to encourage certain concessions from the other party. In addition, once a settlement has been agreed upon, the lawyer can ensure the proper documents are filed with the courts.
To summarize, you’re not required to hire a divorce attorney, regardless of whether you and your soon-to-be ex-spouse decide to go through mediation. But neglecting to do so carries considerable risk. It can leave you financially exposed and cause you to unintentionally abandon some of your legal rights.