Divorce mediation is the process in which a couple looking to get a divorce meets with a mutually agreed-upon mediator to discuss the terms of the legal end to their marriage. Mediators neutrally guide the conversation and help the couple reach an agreement on all aspects of a divorce that would normally be litigated and determined by a court. The mediator then puts those agreements into a written Mediation Agreement, which the parties sign.

Using a mediator can be a more affordable alternative to a litigated divorce, but they cannot complete a divorce for you. Here are some questions people often have regarding the differences between a mediator and an attorney, and when to choose one over the other.

Is a mediator a lawyer, and can lawyers be mediators?

The field of mediation is largely unregulated, so non-attorney individuals such as financial advisors or mental health professionals can serve in this role. In the Commonwealth of Virginia, a mediator can complete a certification process with the Virginia Supreme Court as well if desired.

A lawyer can be trained in mediation; however, when they are acting as a mediator, they are not representing either one of the parties. Instead, they are serving as a neutral party that facilitates discussions, rather than acting as a legal advocate. Some divorce attorneys and retired judges choose to be mediators because they have the skills and experience to guide a couple through the process.

What is a mediator’s role in a divorce?

A mediator’s role is to be a neutral guide that helps both parties reach an agreement for them and their children (if there are minor children involved). Throughout the mediation process, they will encourage and support the couple to make their own decisions about the terms and conditions of the divorce in order to reach a final agreement. Once both spouses come to such an agreement, the mediator will help them write a more formal marital settlement agreement to present to a judge, which may be captioned “Mediated Settlement Agreement.”

What is a lawyer’s role in a divorce?

In a litigated divorce, one or both parties may retain their own, separate attorney to represent them in court and present their case to the judge who will determine how to distribute assets and settle the couple’s issues.  During a divorce, an attorney will advocate for their client and advise them on what to do.

Do lawyers and mediators work together?

They can, depending on the situation. Lawyers are not required in mediation sessions and some mediators think the presence of a lawyer can cause unnecessary tension. If one or both parties have a personal attorney present, they may try to steer the conversation and direction of the agreement toward their client. A person can also consult with a lawyer before and after a mediation session, so they’re bolstered by legal precedent. There are some larger, professional mediation service providers in Virginia, however, which do require the parties to have legal representation during mediation, because they feel strongly that the mediator cannot give legal advice and that parties are better protected by having their lawyer (and advocate) by their side.

When should I use a lawyer over a mediator?

Divorce mediation is best for couples who view their situations similarly and want to dissolve the marriage in a timely and cost-effective manner. It allows couples to come to a mutual agreement without legal intervention.

Ideally, an attorney should be present at every legally binding step of the process.  A lawyer or legal case coach who is an experienced family law attorney should also be involved at the end of the process to review a drafted Agreement before it is signed by both parties and filed with a court.

In situations where a spouse is incapacitated, unwilling to mediate, or is accused of being legally at fault for ending the marriage, mediation is often not a workable option and contested divorce litigation is necessary. Mediation requires both parties to be transparent and if a spouse does not have the ability to make sound decisions, they’ll need an advocate in the form of an experienced family law attorney. Similarly, since mediation is a voluntary process, active participation is required by both spouses. If one refuses to cooperate, they’ll need to pursue a litigated divorce.

If you’re facing a divorce, The Law Office of Patricia E. Tichenor can help. We offer full representation for individuals in litigated Virginia divorce cases, as well as affordable “DIY legal” coaching services for uncontested divorces through our firm, My Legal Case Coach.  Contact us today or schedule a free consultation to discover how we can help you.