The Mediation Misconception

Dec 2, 2015

Some of the most common misconceptions I hear when it comes to the divorce process involve mediation.  These misconceptions include the belief that a mediator can be used in place of a lawyer; that mediation is necessary to have a friendly divorce; and that mediation will always save you money.  While mediation can be a great tool in the divorce process it is not the answer to everything.

What is mediation?

Mediation is the process where a neutral third party oversees a conversation between parties, with the goal of helping the parties talk to each other and reach an agreement on disputes. In a traditional facilitative mediation, the mediator does not give any opinions or feedback to the parties (which can be provided in an evaluative mediation). While some mediators are also lawyers, there is no requirement that a mediator have legal experience. As a neutral third party, mediators are not to give legal advice to the parties nor assist with drafting the legal court documents (even if the mediator is also a lawyer). Many mediators will draft a memorandum of understanding outlining any agreements reached at mediation, but this is rarely a legally binding document or submitted to the court.

Misconception: We can use a mediator instead of a lawyer.

While some mediators are also lawyers and vice versa, mediator and lawyer are two distinct roles and the same professional can not ethically wear both hats in the same case. A mediator facilitates the conversation and encourages the parties to reach an agreement. A lawyer guides the client through the legal process, providing legal advice and preparing legal documents. While there may be some overlap in the subject matter, a divorce mediator and a divorce lawyer are not interchangeable.  Unless the parties are prepared to handle the court process pro se (representing themselves) and have a sufficient understanding of the legal issues, their rights, and the consequences of their agreement, a lawyer will be needed in addition to the mediator.

Misconception: If we want a friendly divorce, we need to use a mediator.

In some cases a divorcing couple are able to reach agreements on their own. They trust each other and are able to communicate easily. They want to have a friendly divorce. For this couple mediation would be a waste of time and money. They don’t need a third party to help them talk to each other when they are able to communicate themselves. They don’t need mediation to reach an agreement they have already reached. There are a variety of ways to have a friendly divorce that do not require mediation, including an uncontested divorce or collaborative divorce.

Misconception: We’ll always save money going to mediation.

While resolving disputes before trial is always good for saving money, mediation is not always the answer. For the couple able to communicate and reach agreement on their own, mediation is an unnecessary expense. For the couple who choose to hire a mediator instead of a lawyer, only to discover they do need a lawyer to handle the court process, or worse, to fix the problems their pro se divorce created, mediation does not save money.  For the couple with a more complex situation, extremely different opinions, and/or a relationship so deteriorated that there is no trust or ability to communicate, meditation alone (without the advice and guidance of attorneys) is not likely to be productive and can add to the overall expense of the process instead of saving the parties money.
Mediation can be a great tool in the divorce process. But it is only one tool in an entire toolbox and is not the answer for everyone.