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

Choosing the right professional to guide you through the divorce process can ease the transition or make it harder—and more expensive—than it needs to be.

Divorce mediation is typically cheaper and less combative than going to divorce court. But cost isn't the only consideration when deciding how to divorce. This guide will walk you through the pros and cons of mediation and litigation, and which path makes more sense for you and your divorce.

What Is Divorce Mediation?

Divorce mediation is an alternative to litigation. In mediation, couples meet with a mutually agreed-upon neutral mediator to hash out issues in their divorce, such as how to divide their property. Mediation can happen before or after someone files for divorce.

A successful mediation doesn't legally end a marriage; only a judge can grant a divorce. After mediation, couples document the mediation terms in a written marital settlement agreement and submit it to the court for a judge to review and sign before the terms are legally binding.

What a Divorce Mediator Does

Mediators don't make orders or give legal advice. Instead, they are neutral facilitators who structure conversations so that spouses can agree on how to settle emotionally charged disputes over issues like alimony and child custody on their own.

Most divorce mediators hold at least a bachelor's degree. Some courts require a master's level education, typically a juris doctor degree (law degree) or a master's degree in social work (MSW). Mediators must also complete mediation training that covers topics like mediation theory, techniques, ethics, family law and divorce procedures, child development, and domestic violence awareness.

Mediators help spouses:

• set goals and priorities
• understand their post-divorce budget and financial needs
• identity non-negotiables and areas of potential compromise, and
• reach a parenting agreement if children are involved.

Most mediators prepare a memorandum of understanding (MOU) summarizing the agreements reached during the mediation sessions. The spouses can then use the MOU to draft a formal marital settlement agreement with or without the help of lawyers.

Some mediators who are licensed attorneys draft formal settlement agreements themselves, but typically must recommend that each spouse have the agreement reviewed by their own attorney before signing.

What Are the Best Types of Cases for Divorce Mediation?

Mediators can handle divorces that involve complex issues, but only if the spouses are willing to sit down together and communicate. Mediation has to be a good-faith negotiation and not a zero-sum game where one spouse wins by making the other lose.

Spouses don't have to like each other or want to remain friends for mediation to work, but they do have to be able to communicate their needs, listen to their spouse's perspective, and be willing to compromise. Mediation success primarily depends on the approach and mindset of the divorcing couple. Here are a few examples of cases that are particularly well-suited for mediation.

Cases Involving Children

Mediation works well when spouses want to end a marriage but preserve the family relationship. Mediation is widely considered the best approach for divorce cases involving minor children because it allows parents to prioritize the best interests of their child by coming up with a parenting plan that addresses their child's unique needs rather than having a judge impose a standardized order.

Mediators are often trained in child development, family dynamics, and conflict resolution, allowing them to guide discussions in ways that keep the focus on the child's well-being instead of the parents' grievances.

Cases Involving Sensitive Information

Unlike a public court trial, mediation is confidential. This means financial disclosures and business and personal information shared during mediation are private, which protects sensitive information and encourages transparency.

Time-Sensitive Case

Mediation is usually faster than litigation, which makes it an appealing option for people who don't want their divorce to drag on. Couples have some control over the number of meditation sessions required to settle—the more cooperative they are, the faster they can resolve the matter and move on.

Mediators' schedules also tend to be more flexible than court calendars, which is helpful for people with a lot of work and family commitments.

When Divorce Mediation Might Not Work

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

• One spouse doesn't want to divorce. Spouses who can't accept that a marriage is over are less likely to negotiate in good faith. Both spouses have the same ultimate goal—to end the marriage—for mediation to work.
• One spouse is seeking a fault-based divorce. In states that allow fault-based divorce, the filing spouse has to prove the reason ("grounds") for the divorce, such as adultery, cruelty, or abandonment. A mediator's role is to facilitate agreement, not litigate fault. Lawyers are better suited to gather or dispute evidence of fault.
• There's a history of domestic violence in the marriage. Mediation requires both parties to negotiate on equal footing and to feel safe expressing their needs and opinions. In abusive relationships, the abuser may try to use fear or intimidation to get their way, which makes true negotiation impossible. Learn more about how spousal abuse can affect a divorce.
• There's an imbalance of power in the relationship. When one spouse has power over the other, financially or otherwise, mediation might not be the right choice. If one spouse controls the conversation or otherwise bullies the other, there's an imbalance of power. At a minimum, the more dependent spouse should consider hiring a lawyer to help with mediation and review settlement agreement terms for fairness.
• One spouse has hidden assets or is being dishonest about finances. Mediation relies on transparency. If either spouse conceals assets or income, mediators don't have the investigative power to uncover this information. Lawyers, on the other hand, can utilize legal tools like discovery (formal requests for information and documents) to search for hidden assets.

What Is Divorce Litigation?

Divorce litigation is the traditional legal process of ending a marriage in court. One spouse files a formal petition (called a "complaint" in some states) asking the court to end the marriage. The petition states the legal grounds for divorce and requests certain orders for property division, alimony, and child custody. The other spouse files a response within a set timeframe (usually 30 days), agreeing with or contesting the requests in the petition.

When divorcing spouses can't agree on all of their divorce-related issues, the divorce is "contested." Each spouse must then provide detailed information about their finances and other personal information through the discovery process. During this time, both sides can negotiate directly or with the help of a mediator. Disputes that can't be resolved proceed to trial.

At trial, the spouses present their side of the story to a judge, supported by witnesses, evidence, and argument. After trial, the judge issues a divorce decree—a binding and enforceable court order—that details the judge's decisions about the contested issues in the divorce.

What a Divorce Lawyer Does

Divorce lawyers, in contrast to mediators, are advocates whose primary job is to represent the interests of their clients. A lawyer's objective is to get the best possible legal outcome for their client, by agreement or through litigation.

A divorce lawyer's duties include:

• giving legal advice tailored to a client's specific circumstances
• drafting and filing all necessary legal documents and paperwork
• conducting legal research
• negotiating settlements, and
• appearing in court for hearings and at trial.

When You Might Need a Divorce Lawyer

Divorce lawyers aren't mandatory and, unlike in criminal cases, the government doesn't appoint one for people who can't afford to hire their own. Still, getting professional legal help is critical in cases involving significant conflict, complex financial assets, or child custody disputes.

Learn more: Do I Need to Hire a Divorce Lawyer?

When You Might Need a Divorce Lawyer and a Mediator

Deciding whether to hire a mediator or a lawyer isn't always an either/or situation. Sometimes, using both is the most effective and efficient approach.

A common hybrid scenario is called "mediation with legal review." In this scenario, spouses work with a mediator to reach a proposed settlement agreement. But before signing or filing the settlement with the court, each spouse has a divorce lawyer review it to ensure it protects their rights and complies with state law. This combines the cost-effectiveness and cooperative nature of mediation with the protection of independent legal counsel.

Some lawyers offer "unbundled" or "limited scope" representation. This means clients can hire a lawyer for a specific task, such as preparing for mediation sessions, rather than for full representation throughout the entire divorce process. This can be a good option for people who want legal guidance but also want to keep costs down and maintain some control over the negotiation process.

Finally, some couples approach divorce by starting with a mediator and then involving lawyers only for those issues they can't resolve. This approach can prevent the entire case from going to litigation, saving time and money, while still allowing legal experts to weigh in on the most contentious disputes.

Cost Breakdown: Lawyer vs. Mediator

When deciding whether to hire a lawyer or mediator (or both), cost is a relevant factor. Here's a comparison of what you can expect to pay, along with factors that will influence your final bill.

Divorce Lawyer Costs

Divorce lawyers usually charge by the hour. According to Clio, a legal technology company, the average hourly rate for a lawyer practicing family law in 2024 was $314. Rates vary by state and city, with higher rates in major cities and places with higher costs of living.

Most lawyers require clients to pay an upfront retainer of several thousand dollars before any legal work begins. As the attorney works on the case, their hourly fees are deducted from the retainer.

Of course, a lawyer's hourly rate is only one factor in the final bill. The other factor—how many hours they spend on a divorce case—varies dramatically based on the number of disputed issues in the case and whether the case settles or goes to trial.

In 2019, we surveyed our readers who had recently been through a divorce. People who hired a full-scope divorce lawyer paid an average of $11,300 in attorneys' fees alone. The median—the middle of the range, where half paid less and half paid more—was $7,000.

Learn more about how much divorce costs.

Divorce Mediator Costs

Mediation is generally more affordable than divorce litigation. Mediators may charge by the hour or offer flat-fee packages for the entire process. And unlike divorce lawyer fees, the cost is usually split between the spouses.

Mediators typically charge between $150 and $800 per hour. Mediators in cities with a high cost of living tend to charge more, as do attorney-mediators and mediators with other special training and experience.

Flat-rate mediation packages typically cost $4,000 to $10,000, depending on location and the complexity of the case.

Learn more about divorce mediation costs.

Making the Right Choice

Mediation and litigation are valuable tools. The best approach—or combination of approaches—depends on key factors like the level of conflict, ability to communicate, case complexity, and cost considerations.

Many couples save time and money by starting with mediation and then turning to lawyers for targeted legal advice or to finalize court paperwork. In higher-conflict or high-asset situations, engaging legal counsel from day one may be the wiser path.

For help choosing the right path for your divorce, you can check out DivorceNet's free quiz on your divorce options.