Do You Need a Divorce Lawyer to Mediate Your Divorce?

Now that you decided mediation is probably the right process for your divorce, should you start looking for a divorce lawyer who mediates? No, you don’t have to—your mediator does not have to be a divorce lawyer and as such may not even be the best fit for the job.

Mediator Qualities

A divorce mediator needs to be skilled, experienced, and knowledgeable in divorce negotiation, finance, and state laws and procedures. Other ideal qualities include being adaptable, patient, and persistent. None of these qualities requires a law degree nor are divorce lawyers necessarily trained in anything other than laws and procedures. Many lawyers, too, are adversarial by nature or because of their law-school training or courtroom experiences. Unfortunately, this may lead them to unwittingly foster a hostile environment, undermining the cooperative and problem-solving nature of mediation.

The best divorce mediators have been professionally trained in mediation, are fully neutral, know the issues and surrounding laws and procedures, and are also experts in complex financial matters surrounding the divorce. Many today are choosing a Certified Divorce Financial Analyst (CDFA®) to mediate their divorce, recognizing that a CDFA® has unique qualities and skills to develop optimal and creative settlements that address everyone’s best long-term interests.

Legal Documents and Attorney Review

Now, divorce does require legal documents and filings and you may want an attorney or other legal professional to do that for you. Alternatively, once you have your signed Memorandum of Understanding from your mediator, you can easily create your own documents. This can be accomplished with many inexpensive online services or by just relying on the information and forms provided on county websites.

Some individuals or couples, even if they use a divorce mediator who is also a lawyer, will want to involve attorneys. This might be to have their own attorney(s) counsel them during the mediation process and/or have them review the Memorandum of Understanding and Settlement Agreement once the mediation has been completed. It’s always wise to take this extra step and I encourage my clients to do so. In my experience, though, most do not.

When Not to Mediate

We recognize, of course, that mediation is not the best choice for every divorce and that you may need to involve the court’s oversight (with or without a divorce lawyer). Mediation may not be the right path, for example, when there’s been or is the threat of violence in the relationship or when one of you is just not willing to take into account the other person’s interests.


If you’re seriously thinking mediation might be the best path for you and your spouse, take time to assess your needs and what skill-set, training, and qualities would best serve you. Read our free e-Book to learn about some steps you should be taking before you divorce. Talk to a few potential mediators and choose one that you and your spouse feel most comfortable with. You only get to do this divorce once and it could have long-term implications for your (and possibly your children’s) emotional and financial health.

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Six Elements of a Successful Divorce Mediation

As a process to divorce, mediation has grown in popularity for several reasons. It’s significantly less costly than other assisted alternatives, it empowers couples to control their own destiny and make decisions that best serve them and their children (as opposed to relinquishing the control to attorneys, court masters, and judges), and it creates less emotional damage for all involved. On the other hand, it may not be the best solution when one of the parties is not able or willing to fully engage in the process. A properly-qualified mediator can work with a hesitant party to improve the chances for success. Nonetheless, you should consider six critical elements to a successful mediation.

Here Are Six Critical Elements For An Effective Divorce Mediation:

1. Readiness:

It is often the case that one spouse is way ahead of the other in calling it quits. If both spouses aren’t ready to dissolve the marriage, discuss the distribution of assets, or deal with custody issues then the process is crippled before it even gets started. To effectively mediate, both must be ready to move forward and not use mediation sessions to attempt to derail the divorce. Readiness also includes having emotions in check. Divorce is, indeed, a major life event that makes for strong emotions but these must be largely dealt with outside of divorce mediation sessions. 

If you are the reluctant spouse or know that you’re feeling too emotional to productively engage in divorce mediation, consider utilizing a divorce coach to help you address your concerns and issues until you feel ready. Beware, though, that If you stall the process for longer than your spouse can tolerate, he or she may hire an attorney and begin the litigation process—this may result in far greater expense and emotional damage.

2. Openness to Options:

A good mediator will educate the couple about alternatives to settlement options regarding asset division, support, and custody issues. She is an expert in divorce and is trained to address the pertinent issues. It’s good if you and your spouse have already had discussions around the key issues, but even better if you both enter the mediation process with an open mind about creative alternatives that might improve your situation.

3. Full Disclosure:

Your mediator can only incorporate the information you share with her. Key information includes what you envision as your needs and wants for your future apart as well as all income, assets and liabilities. Creative solutions to divorce settlements are born from an in-depth understanding of needs and concerns, also the available resources. If a mediator senses there are trust issues, she’ll terminate the divorce mediation process and suggest you consider litigation, instead.

4. The Right Mediator:

Not all divorce mediators are alike! Many family law attorneys have turned to mediation as a way to boost their incomes in a competitive marketplace but they aren’t really committed to a non-adversarial approach. If you consider a mediator attorney, you need to ask them if they exclusively mediate or whether they also litigate—you want someone who is committed to a less adversarial practice and not just looking for a way to boost revenues. Also, you want someone with expert training in the divorce issues that are most important to the both of you. Lawyers are experts in the law but not necessarily in divorce finances and custody. If your primary issues are financial, then consider a divorce financial expert, i.e., a mediation trained Certified Divorce Financial Analyst (CDFA®). Even better, a CDFA® who is also a CDC Certified Divorce Coach® who can help you make decisions that are consistent with your values and tackle some of the emotional issues getting in the way of a settlement that will serve both of you well into the future. If there are custody issues as well, a CDFA® mediator can incorporate a parenting specialist into the divorce mediation process or, if necessary, assist you in a collaborative divorce that incorporates parenting, financial, and emotional specialists in addition to attorneys for both sides (but beware, collaborative divorce can get quite expensive relative to mediation).

5. Sufficient Time:

Don’t let anyone rush you into an agreement you’re not ready for. Yes, in litigation there’s a clock running, but not in mediation! Take time to consider your options and make a decision that you won’t regret in the future! 

6. Attorney Review of Your Settlement:

Once you are satisfied with the agreements you’ve made with one another and have a draft of a Settlement Agreement, you should pay an attorney a few hundred dollars to ensure your Agreement is sound and can’t be legally challenged in the future. Once processed, it’s difficult and costly to challenge your Agreement, so make sure it’s thoroughly reviewed before you sign anything.

Starting the Divorce Mediation Process

Mediation is a great process for divorce and one you won’t regret if you make sure you’re ready and ensure you have the right mindset, fully disclose your finances and what’s important to you, allow yourself the time needed to make decisions you won’t later regret, have chosen an ideal mediator, and do a legal review before you finalize your Settlement.

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Style of Divorce Mediation

Couples that decide to use mediation for their divorce process often don’t realize that there are three distinctly different styles of mediation. They vary greatly and the style your mediator is trained in will significantly impact the experience you are signing up for. It can be very confusing for the client and you need to make sure you are educated before you evaluate mediators. The three primary styles of mediation are facilitative, evaluative and transformative. There is also a hybrid style that combines aspects of each.

Facilitative Mediation

This is the earliest style of mediation introduced in the 1960’s and 1970’s. The mediator typically creates an atmosphere that encourages each party to have a voice in the process and the mediator asks appropriate questions to elicit the underlying fears, concerns, and interests. The mediator does not typically make recommendations to the couple and encourages them to come to their own agreements on the various issues. Generally, all sessions are held jointly but there may be short meetings with each person individually, as well.

When facilitative mediation began, it was not necessary for the mediator to have extensive knowledge or experience in the area being mediated so many are not experts in any aspect of divorce. That can still be the case today, but more and more there are attorneys, financial experts, and other divorce practitioners who are embracing the practice as well.

Evaluative Mediation

This style was born out of the court system and modeled after the settlement conferences held by judges. The mediator (or mediation team) is trained in one or more specific aspect of divorce, e.g., the law, financial matters, or custody, and will provide expert advice. This style of mediation is often practiced by attorneys using separate meetings with parties and then moving back and forth from one party to another. A true evaluative mediator makes recommendations to each party and directly influences the outcome. 

Transformative Mediation

A newer concept in mediation, transformative mediation was introduced in 1994. It is based on “empowerment” of each of the parties and “recognition” by each of the parties of the other parties’ needs, interests, values and points of view. The values are very similar to facilitative mediation. The foundation of transformative mediation is self-determination, the couple’s ability to structure their own solutions and process. The mediator then follows their lead. 

Hybrid Mediation

In divorce, most couples want to avoid litigation and an attorney-driven process that can cost tens of thousands of dollars and result in decisions that aren’t the couple’s own. They do, though, want some expert guidance before negotiating the particulars of their Marital Settlement Agreement and Parenting Plan. A combination of aspects from each style of mediation—facilitative, evaluative, and transformative—can produce a divorce that works best for you, your spouse, and children. Learn more about the TruNorth Mediation process here. 

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