Knowledge Base

When Divorcing: Should You Hire a Mediator, Attorney, or Both? 


September 1, 2011
Written by Lynne C. Halem

Aaron and Margie Tennant decided to divorce.  This was by no means an easy decision.  For the last year, they had struggled with feelings of regret, sadness, and even fear, uncertain of what the future would hold for them or their children.  They worried, they agonized, they vacillated, but finally, with the help of Dr. Allen, their marriage counselor, they decided divorce was the route to be followed.  This decision made, after much thought and emotional reconciliation with their choice, also led them to pledge to each other to separate without bitterness.  Neither one wanted to hurt the other or to inflict pain; neither one wanted to wage a battle.  And both agreed to protect their children from the downside of divorce.

Their therapist recommended divorce mediation.  Aaron and Margie agreed with the benefits explained by Dr. Allen. They would, she said, have control over their decision-making; they would save time and emotional angst; they would be guided to structure an agreement that would protect all family members.  However, despite Dr. Allen’s cogent appeal to their hearts and minds, their family and friends presented a different view.

“Margie, you need to protect yourself.  Who knows how Aaron will think in the future.  Get a tough lawyer”, urged her dad.

“Aaron, she’ll take you to the cleaners, like Nancy did to me.  Get a tough lawyer”, said Aaron’s best friend.

Aaron and Margie were confused.  Neither wanted to hurt each other, but the advice of family and friends plagued them. Maybe, they thought, Dr. Allen was wrong.  Mediation, they concluded, might be too risky.

 Margie proposed to Aaron what she viewed as a win-win alternative.  They should get nice lawyers and let them work together to determine the settlement.  Sounds good?  “You bet!”  Did it work?  Not really.  The lawyers did propose a settlement, but neither party liked parts of the deal and so the bickering began and the clock ticked on.

Finally, almost desperate for an end, Aaron called Dr. Allen for the name of a mediator.  In the end, Aaron and Margie did successfully mediate their agreement, each returning to his and her counsel to have the settlement reviewed.  With a bit more tweaking, the end was in sight, but not until the couple had spent one and one-half years struggling with reaching an agreement and, in the process, almost losing their friendship.

The story of Aaron and Margie is not really unique.  Many individuals are influenced by the fears and concerns of those nearest and dearest to them.  Some feel compelled to follow their heartfelt advice; others are afraid not to – afraid of angering these close “advisors” or afraid to follow their own path, unsure of how to negotiate alone the uncharted waters of the divorce process.  Others feel the need to be told what is best for them and think that they will make poor decisions in mediation.  They do not understand that they can mediate and have legal advice.  Although the two processes are not mutually exclusive, repetitive, or antagonistic to each other, they are also not the same.  Two “nice” lawyers do not produce the same end result as a successful mediation with skillful facilitation of decision-making.  Lawyers, nice or aggressive, are one-sided advocates, ethically bound to the person they represent. An advocate is precisely what the word implies.  Two advocates may, of course, compromise to reach agreement but even in their movement to settlement, they must still focus on one side. Concern for the impact of the settlement on all family members is not their role. Typically, this kind of thinking hinders creative problem-solving and delays the resolution of the issues.

Mediation should produce an agreement tailored to each couple.  It should be based on knowledge of each party’s options and of the implications to each one.  Legal representation, here, allows clients to have peace of mind that they have indeed gotten a fair agreement as seen through the eyes of someone thinking only of them. Also if needed and/or desired, clients can also secure legal guidance throughout the process. It does not involve an aggressive advocacy stance. The lawyer needs to be respectful of the mediation process and to recognize not only that the “other side” lives on the same planet but is also not the enemy.

All divorcing individuals do not feel the need to “couple” the two processes of mediation and legal representation. However, for those couples that react like Aaron and Margie, mediation, with legal overview, is a sensible and effective option.  It is an option that does not employ attorneys as forceful advocates.  It is also an option that does not hinder the progress of reaching a settlement.

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