Should I Hire a Lawyer or Use a Mediator for My Divorce?

Deciding to file for divorce isn't easy, regardless of the circumstances that led to your breakup. To make things even more difficult, divorce can be expensive and combative—especially when one or both of the spouses decide to hire lawyers.

Hiring a mediator to guide you and your spouse in mediation is often less expensive and less combative than hiring a lawyer to take your divorce to court. But cost isn't the only consideration when deciding how to divorce. Here's some information to help you evaluate whether working with a mediator instead of a lawyer is right for your divorce.

Litigated Divorce Versus Divorce Mediation

As a first step in weighing your options, it's helpful to understand the differences between arguing ("litigating") your case in court and trying to resolve it through mediation.

Litigated Divorce

Traditionally, couples head to court to end their marriage: One of the spouses files a formal petition (request) asking the court to terminate the marriage and decide issues such as property division and child support and custody. When a couple can't agree on how to resolve these issues, the divorce is "contested."

If spouses are unable to reach a resolution, their case will go to trial. At trial, both spouses present their side of the story and produce evidence in support of their positions. After considering the case, the judge issues a divorce decree—a binding and enforceable court order—that details the judge's decisions about the unresolved matters in the divorce. It can take years and thousands of dollars to resolve a contested divorce.

On average, going through a trial in a contested divorce will cost each spouse tens of thousands of dollars. The cost increases when you hire experts or when the parties file a lot of motions (written requests for the judge to rule on a specific matter).

Mediated Divorce

Divorce mediation is a potential alternative to litigation. In mediation, couples meet with a mutually agreed-upon neutral mediator to discuss and resolve the issues in their divorce without court involvement. A mediator does not make orders about the case; rather, the mediator guides the discussion and assists the couple in reaching an agreement. Once the spouses have worked things out, most mediators help them write up a marital settlement agreement to sign and present to the judge.

Although mediation isn't free, it costs significantly less than going through a contested divorce. The average cost of divorce mediation (both in-person and online) is $3,000-$8,000. The price of mediation varies depending on the market rate where you live and whether you need to bring in experts to help sort out complex matters, such as division of a family business. For most divorcing couples, though, mediation is a far less expensive option than battling it out in court.

A successful mediation doesn't automatically end your marriage: If your mediation is successful, you will need to have a court finalize your divorce. If you mediate before filing a divorce petition, you will need to file a divorce petition that either references the settlement agreement or includes the terms of the agreement. If you mediate after you've filed a divorce petition, you can submit the settlement agreement to the court and ask the court clerk to schedule a final hearing.

A judge will review your settlement agreement to confirm that it meets your state's divorce requirements and resolves all necessary issues. The judge might issue a divorce decree without your having to appear in person, or the judge might require the spouses to attend an in-person hearing to verify on the record (the official court file) that you both agree to the settlement terms. After reviewing the settlement agreement and all other documents filed with the court, the judge will issue the final divorce decree.

Do I Need a Lawyer If I Mediate My Divorce?

Litigating a divorce is complicated, so most spouses involved in a contested divorce will hire a lawyer to help them navigate the court system and present their best case at trial. On the other hand, many people who mediate their divorce represent themselves in mediation—in fact, your mediator might not allow attorneys to attend the mediation, in an effort to foster cooperation. Even if your mediator doesn't allow lawyers, though, you are free to consult with one outside the mediation.

Many mediators prepare and file with the court the paperwork necessary to complete the divorce. If the mediator you work with assists with wrapping up the divorce, you might be able to navigate the entire process without a lawyer.

It's important to remember, though, that a mediator can't tell you if you're making a bad deal in your divorce. So, while you might save money by not hiring a lawyer to attend mediation with you, many divorcing spouses choose to consult with an attorney to ensure they aren't giving up valuable rights or taking on extra responsibilities in the settlement agreement.

Should I Mediate My Divorce?

Although mediation is an excellent option for many divorcing couples, it won't work for every divorce. Mediation isn't a good idea if:

• You're currently experiencing domestic abuse or are afraid of your spouse. If you're in this situation, don't try to go it alone—seek help from a lawyer or legal aid. Leaving an abusive spouse might exacerbate an already strained relationship. You might need to have the court enter a temporary protection order, and mediators can't help you with this process.
• There's a history of domestic abuse in your marriage. Mediation requires couples to share time in a room together, negotiate, and work through big marital issues. When there's a history of violence in the marriage, the spouses might not be able to communicate freely and in the spirit of cooperation. If the abuse was in the past, and you want to give mediation a chance, consider hiring an attorney to represent you.
• There's an imbalance of power. When one spouse has always held power over the other, whether financially or otherwise, mediation probably isn't the right choice. In mediation, spouses should be working together on an even playing field to create a settlement agreement that works for each of them. If one spouse controls the conversation, refuses to give up essential information, or otherwise bullies the other, there's an imbalance of power. At the very least, you'll want to consider hiring a lawyer to assist in your mediation so ensure that you don't agree to a settlement that is unfair.
• One spouse doesn't want to divorce. In a mediation session, spouses who can't accept that the marriage is over are less likely to negotiate in good faith. If your spouse doesn't want to divorce or disagrees with your grounds for divorce (in a fault-based state), strongly consider hiring a lawyer to file a divorce petition and advocate for you.
• One spouse is claiming the divorce is the other's fault. If you live in a state that allows fault-based divorce, and your spouse is claiming the divorce is your fault, you're likely already in a defensive position that might make mediation pointless.

Finally, if your spouse has hired an attorney (no matter whether you're litigating or mediating your divorce), it's a good idea to at least consult with one yourself. If cost is a concern, consider seeking assistance at a local legal aid office—you might qualify for low-cost or pro bono (free) representation. Also, if you're litigating your divorce, you might be able to request that the court order your spouse to pay your legal costs and fees—many courts require spouses with more financial resources to cover the other spouse's divorce-related expenses.