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Why You Want Your Mediator to be a Litigator and Your Divorce Attorney to Be a Mediator

The traditional idea of divorce is a court battle where husband battles wife, Smith vs. Smith. They’ll fight over the house, bank accounts, retirement accounts, custody of the kids, child support, and alimony. This will go on and on until someone gives in, goes bankrupt, or loses in an ultimate trial.

Nowadays, there are better ways. A whole slew of options has opened up to couples who want to divorce. You can agree to an uncontested no-fault divorce for starters, but if you can’t agree amongst yourselves, there are alternative dispute resolution mechanisms such as mediation available to couples.

What is Mediation and How Does it Work?

Mediation is when the couple jointly hires a neutral person to help them resolve their disputes instead of turning to a judge to make decisions for them. A mediator can be a therapist or they can be an attorney.

At the conclusion of the mediation, if the couple is able to resolve their issues, a final document gets drafted to immortalize their agreement. A therapist can only draft a Memorandum of Understanding, which is not a binding legal document. An attorney who’s acting as a mediator can draft a Separation Agreement or other legal agreement, which if approved by the court, is enforceable.

From my experience, couples find it difficult to understand why after mediation with a therapist, they will need to still hire a lawyer to help them draft all the documents.  In my opinion, it’s better in most cases if your mediator is a divorce attorney so that can give you legal information and also be able to draft any ultimate binding legal document.

Why Would You Want Your Mediator to Also be a Litigator?

There are mediators who concentrate exclusively on mediation and never represent individual people in court and never litigate.  That means they never step foot in a courtroom and after a while, they start to lose touch with the idiosyncrasies of each court and each judge.

As a divorce attorney who practices in certain Probate and Family Courts in Massachusetts, we have a working knowledge of how each court operates and how each judge might look at a certain issue.  This practical knowledge is important because when drafting a settlement in mediation, sometimes there are very novel and unique arrangements that couples come up with. 

However, at the end of the day, that agreement still requires approval from a judge in order for the couple to get divorced.  A mediator who also litigates and practices in the courts you’ll likely file your divorce in, will have a practical and working knowledge of whether your specific and unique settlement agreement will be approved by a judge or whether it will encounter resistance.  

Why Would You Want Your Divorce Attorney to be a Mediator?

Most divorces, even if it starts out as contested, will ultimately end up with a settlement. In my experience and in most cases, the difference between cases settling and ultimately going to trial, comes down to the ability of each attorney to find a common ground between their clients and forge a settlement that everyone can accept.

Pure litigators who have not been trained in interest-based negotiations and mediation, simply don’t have the skills to look at all options and find that common ground. Having a pure litigator push your case forward and litigate to the end, in most cases, does not serve the best interest of you, your family, and especially your children. Litigation damages children most of the time.

When looking for a mediator, ask if they also practice in the court you’ll be filing in and how familiar they are that specific court and its judges. When looking for a divorce attorney, ask if they’re also a mediator and how often they settle their cases. In both situations, you need to look for the best of both worlds.

Contact Our Divorce Attorneys to Start the Divorce Process

If you are ready to file for divorce or have received divorce papers from a spouse, contact us at Infinity Law Group today to discuss your options. You can reach us by submitting your information through our online form or calling 617-283-5110.