This will depend on the type of case you have and the outcome that you are seeking. In many instances a mediator may be an attorney, just not your attorney. Mediators and attorneys have different roles.
What are the differences between the services of an attorney and a mediator?
Attorneys represent the interests of their clients and advise them on the best way to present their case. Attorneys can discuss with you what may happen in court and can discuss ways to get you the result you are asking for. In contrast, a mediator doesn't give legal advice and does not represent either side of a dispute, even if the mediator is also an attorney. Mediators encourage people with a dispute to communicate with each other, and try to get the parties reach satisfactory and lasting agreements. In mediation, you speak for yourself rather than having a lawyer speak for you.
Should I have both an attorney and a mediator?
That depends. Mediation can be used to resolve a variety of disputes, from relatively simple small claims issues to more important ones, like those involving divorce. The more serious the conflict you have with another person, the more likely it is you may want an attorney to assist you.
If you decide to mediate, you may not need to have an attorney represent you. Instead, you can ask an attorney for help with a variety of tasks, such as:
- Giving you information about your legal rights;
- Advising you on your particular situation; and
- Reviewing any agreement that may come out of mediation.
What can mediation give me that litigation cannot?
This section is based upon the book; How to Avoid the Divorce from Hell, written by an experienced Family Law lawyer, Sue M. Talia, Esq.
Privacy - Courts are very public places and court documents are public as well. It is relatively rare to have a closed hearing or sealed court documents. Mediation, by contrast, are confidential proceedings, which offer the benefit of keeping your personal and financial affairs out of public view. It is important to note, however, that a final agreement made part of a court order will be a public document.
Creativity - Due to the nature of our legal system, judges must follow certain rules when deciding cases. The types of relief (solutions) that a judge can order as the result of litigation are limited. As family law attorney, Ms. Talia notes; "the truth is that on your worst day, you and your spouse can probably think of several better and more creative approaches to your problem than a judge is likely to impose." This isn't because judges can't think creatively. Some of the best solutions just aren't available to a judge who must follow the written law, and what other judges have decided. The flexibility you have to reach your own result is one of the greatest benefits of choosing mediation.
Fewer Costs - The role that a consulting attorney plays in mediation is very different from litigation. Important steps, like the investigation and sharing of evidence, are more informal. This reduces the cost and complexity of a case. Consulting attorneys advise you about your legal rights and the consequences of mediated agreements. This requires less time (and fewer fees) than the traditional attorney role. There is no incentive for attorneys to litigate beyond what is necessary to satisfy both parties. Some estimate that the cost of mediation can be from one-third to one-half that of litigation. This can be particularly important in a case, such as divorce, where the costs of resolving the dispute are likely to be drawn from shared assets.
Faster Results - The formal procedures lawyers undertake in litigation are not only more costly, they also take more time. Built-in time delays can be kept to a minimum by informally sharing information. You can set the pace for the proceedings, rather than relying on a court, and mediators will have more time to handle your case than judges. Delays which can last for months are cut down, and there's no danger that the mediation will be postponed for lack of a judge's available time.
Does this mean that mediation is always the answer? No, however mediation is generally worth exploring.
Questions to ask yourself before you choose Mediation.
Look at your relationship with the other party.
- Do you and the other side have a stake in an ongoing relationship? Families and neighbors are good examples of situations in which each party can expect that they will see one another again and need to interact. Mediation offers a chance to fully hear what the other side has to say and to find an agreement that works for both sides. If you go to court, a judge will only be able to order certain types of outcomes based on how the law is written.
- Are you and the other person somewhat equal in power? If so, mediation maybe a good choice. If not, going to court to litigate (ask the judge or a jury to decide) may be the best choice.
- Do you need information that the other side might hide in order to resolve the dispute? Mediation is particularly suitable if the information needed to resolve the dispute is pretty much known to everyone involved. If you think that the other side is unlikely to reveal this information without being formally asked to do so, mediation might not be the best option.
Is my dispute over something that can be resolved by mediation?
Probably YES - Family conflicts are often a good choice for mediation because the parties are usually linked by family ties (family ties of blood or shared responsibly or experience that will continue to exist once the current dispute is over). Therefore, custody and visitation, support and divorces involving children are often good cases to consider mediation. Disputes between neighbors, with businesses in the community, or other one-on-one conflicts are also often good candidates to consider for mediation because;
1. The relationship is likely to be ongoing;
2. You are fairly equal in power; and
3. The information about the dispute is likely to be known by all the people involved.
Probably NO - Certain types of cases do not lend themselves to mediation. For example, cases of domestic violence, personal injury, or cases against a large or distant company often involve;
1. Significant differences in power where a judge or jury might offer the best outcome; and
2. Situations where the other side has information that is needed to resolve the dispute, but is unwilling to do so without “formal discovery”. In these cases, you may need an attorney to represent you in order to draft “discovery” requests, such as subpoenas (formal requests to produce certain evidence or testimony for the court), or interrogatories (written questions directed to a party), that are only available in a formal court setting.
While litigation can be a much more expensive choice, in some cases, the other side may be forced to pay your attorney’s fees. Usually, this is only if you “win”.
The key to your decision is to be realistic about a fair outcome. You can make a fair assessment by:
- Knowing something about the types of relief (outcomes a court can order) that is available to you in a particular case. You can find some of that information here on this website, or you can contact an attorney for advice on the law as it applies to your case, and whether your case might be a good candidate for mediation. You can also contact a mediator for help to decide if you might have a case in which mediation will help. Remember that only an attorney can make a legal assessment of your case.
- Putting aside some of your emotions, and looking at the long term picture. This is particularly important in disputes with family or neighbors.