Divorce Mediation vs. Lawyer: What Costs More?

Divorce is almost always an unpleasant process. But it doesn't have to be a drawn-out battle that piles on emotional and financial pain. Many couples have found that divorce mediation, a form of alternative dispute resolution (ADR), can help them decide how they'll handle the practical issues in their divorce—including property division, child custody and visitation, child support, and alimony—in a way that lessens conflict and fosters cooperation. It can also help them save on the cost of divorce.

How Does Divorce Mediation Work?

In divorce mediation, spouses meet with a specially trained mediator to discuss and attempt to resolve the issues in their divorce. Divorce mediators are often lawyers, but it's not a requirement: Some mediators are financial specialists (like CPAs), psychologists, social workers, or MFTs (marriage and family therapists). Mediation can occur in person or online.

Mediators don't serve as an advocate for either spouse—they remain neutral throughout the mediation. Additionally, mediators don't make decisions about the divorce. Instead, they use their knowledge, skill, and experience to help the couple reach a compromise they can live with.

At the end of a successful mediation, the spouses will have a marital settlement agreement that lays out their agreements about the issues in their divorce. A successful mediation doesn't result in a divorce, though—the spouses still have to present the settlement agreement to the court to approve. Because the spouses have settled, they can file an "uncontested" divorce, meaning that the court needs to only approve the settlement agreement and issue a final divorce decree. Courts usually can resolve an uncontested divorce within a month or so—much faster than a contested divorce would be finalized.

Does Using Mediation Mean I Won't Have to Pay Attorneys' Fees?

There's no requirement that you have a lawyer when you go to mediation. In fact, most mediators don't like having lawyers present during mediation—the presence of lawyers can make the parties less likely to collaborate. Spouses are free to consult with a lawyer outside of mediation, though, and many mediators encourage the spouses to have their own lawyer review any settlement agreement reached in mediation.

Not having a lawyer attend mediation will save you money. However, hiring an attorney to review your settlement agreement or help you prepare for mediation is money well-spent: What you agree to in mediation has serious effects on your post-divorce life, so it's worth having a lawyer explain the settlement agreement's terms and consequences.

Working With an Attorney After Mediation

Once you've written and signed a settlement agreement, you might be able to finalize your divorce on your own or with the assistance of the mediator. Many mediators will draft and file the necessary paperwork for you.

If you decide to file the divorce paperwork yourself, check your court's website for assistance: Most courts post all the divorce forms you'll need on their website, along with detailed instructions. If you'd rather not handle the paperwork on your own, then you might want to have an attorney represent you.

Even if you hire an attorney to represent you in a mediation or assist with your settlement agreement and paperwork, you'll spend far less in attorneys' fees by mediating than you would if you went to court. A litigated divorce—one where the parties rely on the judge to decide the issues in their divorce—is usually a drawn-out process (often taking a year or more) that involves a lot of paperwork, numerous court appearances, and, if you're working with an attorney, legal fees that can amount to tens of thousands of dollars.

How Much Does Divorce Mediation Cost?

The cost of divorce mediation depends on a number of factors, such as:

• Using an attorney-mediator vs. non-attorney-mediator. Using an attorney-mediator will often cost you more than using a non-attorney. Attorney-mediators' fees tend to be higher (typically $250 - $500 per hour, compared to $100 - $350 for a non-lawyer). But if you have a variety of issues to discuss, a mediator who's a seasoned divorce attorney might be better able to lead you through the process and attain a successful result, as opposed to a mediator with a more restricted expertise, such as in financial matters or child custody disputes.
• The market rate. Like many of life's expenses, the cost of mediation varies depending on where you live. Mediation often costs more if you live in a city or major metropolitan area.
• How the mediator charges for services. Some mediators bill by the hour, while others might charge per session. Some offer a flat fee for the entire process, although this might be based on a set number of sessions or a specific time period, with any additional sessions costing you more. Some mediators charge extra to draft or file court paperwork.
• The complexity of your divorce. If you and your spouse have worked out most of the issues in your divorce, you might be able to resolve the rest in a single session. On the other hand, if you haven't resolved anything, you'll probably need longer or more mediation sessions, which will cost more. Also, some topics take longer to resolve, such as how to divide complex assets (like a family business) and difficult custody disputes (for example, when one parent wants to move out of state).
• The need to consult with experts. You might need to hire experts to provide perspective on some issues. For example, an appraiser can help determine property values, or an actuary can assess the distributable amount of a pension. In cases involving child custody and visitation, you might want to bring in a psychologist to recommend a parenting plan that is in the best interests of your children. (It's worth noting that if you took your case directly to court, you'd need to hire these same types of experts, plus you'd be paying them extra to provide testimony for the court.)
• The level of conflict. It's crucial that divorcing spouses enter into mediation with a mindset of being willing to compromise and set aside any hostility—even if their only reason for doing so is to save money.

It's common for divorcing spouses to split the mediator's fee and any other mediation-related expenses. So even in a mediation with many issues to resolve, both spouses usually pay far less than they would if they decided to forgo mediation and use attorneys to try to hammer out an agreement.

Is Mediation Always the Better Option in Terms of Cost?

Although mediation is a great option for many, it won't be a good fit for every divorce. When the chances of successfully mediating a divorce are slim to begin with, engaging in the process would be a waste of time and money.

Mediation is unlikely to succeed when:

• There's ongoing domestic abuse. A spouse who is experiencing abuse is almost always afraid to voice an opinion, for fear of retaliation. Rather than attempt mediation, a spouse who is experiencing domestic abuse should seek help from a qualified source.
• A spouse won't participate in good faith. When a spouse hides assets or refuses to compromise, mediation will likely fail.
• There's an imbalance of power between the spouses. If one spouse has a history of bullying or belittling the other, the imbalanced relationship will frustrate efforts to come to a truly negotiated settlement agreement.

Even when the divorce seems like an ideal candidate for mediation, sometimes things just don't work out, meaning the spouses will have to head to court. If this happens, it might seem like you're starting from scratch—but it doesn't necessarily mean mediation was a complete waste of time and effort. A mediation that doesn't result in full settlement might still:

• Resolve some of your differences. This allows you to narrow down the issues you'll be contesting in the divorce. And in a divorce, not having to litigate an issue means lower attorneys' fees.
• Allow you to complete your "homework" for court. In order to participate in mediation, you probably had to collect and organize a lot of the documents and information you'll need to present in court. For example, you might have needed to gather your tax returns to negotiate spousal support in mediation. You'll have to produce those same tax returns in court. So by doing your mediation homework, you've saved yourself the time and expense of having to work with an attorney to prepare this information for court.

It's true that a failed mediation might indeed wind up costing you more money in the end. However, if you and your spouse go into the mediation process with the right attitude, you'll have increased greatly the chances of a successful outcome. Considering all the benefits that could result from mediation, it might be a risk worth taking.