Do I Need a Family Law Attorney or a Mediator?

If one has never gone through a divorce or a child custody or support case, the difference between hiring an attorney and hiring a mediator can be confusing.  However, while both attorneys and mediators are useful in resolving family law problems, their roles are very different.

An attorney is a counselor at law and advocate for the person who retains that attorney.  As a counselor at law, that attorney will provide legal advice to the client, counsel the client on the range and likelihood of possible outcomes should the matter be resolved by a judge, and help the client set goals that can realistically be achieved.  As an advocate, that attorney should be expected to help the client achieve his or her legal goals either by getting the opposing party to agree to what the client seeks or by convincing a judge to award what the client seeks. An attorney never provides the other party legal advice (other than suggesting that the other party might wish to hire his or her own attorney) and owes a duty of loyalty and diligence solely to the client (this is true even when someone else is paying the client’s bill).

A mediator is a third-party neutral who helps the parties reach agreement on a wide range of family law issues: property division; child custody and visitation; child support; alimony; modification of alimony, custody or child support. A mediator can also help the parties reach an agreement on the ground for divorce that might be pursued, though only a family court judge can grant a divorce.  A mediator does not give either party legal advice and does not advocate either party’s position, though a mediator may suggest solutions that meet both parties’ needs or question a party to expose potential pitfalls in the position that party is taking on a particular issue.  More information about what a mediator does can be found here: What is Mediation?

Basically, one needs an attorney if one is seeking help in developing or advocating one’s legal position and one needs a mediator if one wishes to use alternative dispute resolution techniques to resolve a dispute without resorting to a trial.  Sometimes, it is useful to have both an attorney and a mediator but the same person cannot handle both roles in a mediation.  It is technically possible for the mediator to then act as an attorney for one party in having any agreement reached in mediation be turned into a binding court order and I am willing to act as an attorney to draft a formal agreement from any mediation I conduct.  However, for reasons explained here, How Does One Turn a Domestic Agreement into a Binding Court Order?, I am unwilling to act as the attorney after I have mediated a case and will refer parties to a different attorney, who has agreed to handle such matters for a reduced rate, for that task.