Divorce Mediation Vs. Lawyers
Divorce cases represent some of the most emotionally challenging, legally complex and generally contentious of all types of legal proceedings. Divorce laws and procedures in the United States are designed at least to some degree to minimize the passions that can erupt in these types of cases. Jurisdictions in different parts of the country not only rely on more traditional attorney representation for divorcing couples but also on mediation.
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Function
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The function of attorneys as opposed to mediation in divorce proceedings differ quite significantly. The charge of an attorney is to represent his or her client zealously, in an adversarial setting. On the other hand, the function of a mediator is to try to develop consensus and agreement between divorcing spouses.
Misconceptions
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A common misconception associated with divorce attorneys is that they do not have a responsibility to attempt a settlement of a divorce case. The fact is that sometimes it is in the best interests of a divorcing person to reach a settlement with his spouse. Therefore, a lawyer needs to pursue such a course.
Another misconception is that a mediator performs rather like a judge and makes decisions on behalf of a divorcing couple. In fact, a mediator makes no decisions for a couple in a divorce case. Rather, the mediator is charged with aiding the parties in reaching consensus regarding matters at issue in the divorce proceeding.
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History
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Over the course of the past 10 years, a number of jurisdictions enacted either state statutes or court rules requiring parties in divorce cases to participate in mediation. The requirement exists whether or not the parties are represented by legal counsel. The theory is that mediation provides an opportunity, under the supervision of a professional mediator, through which a divorcing couple can negotiate a reasonably amicable settlement of their case.
Time Frame
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No hard and fast rules exist as to when a mediation should be held in a divorce case. There is a great deal of flexibility in that regard. Mediation can be attempted at the start of the case to attempt to resolve major issues before a case drags on without significant steps toward resolution. On on the other hand, mediation can be conducted closer to a scheduled trial as a last-chance effort to resolve the case.
If a party elects to use an attorney, legal counsel should be involved in the case from day one. The best interests of a divorcing individual typically are best served with comprehensive legal representation at all stages of divorce proceedings.
Expert Insight
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In the final analysis, both mediation and attorney representation play vital roles in the family law system. A divorce case typically benefits from both strong advocacy provided by an experienced attorney as well as the chance for meaningful negotiation advanced through the guidance of a skilled mediator.
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References
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