Every family lawyer’s favorite sentence is probably, “I have a quick question.” I’m kidding. Mostly.
Lawyers have an important job. So do judges. So do mediators. The confusion usually starts when we treat those jobs like different versions of the same thing. They’re not. If you need someone advocating specifically for your legal interests, that’s attorney territory. If you need a court to make a decision because the two of you cannot, that’s what judges are there for. If the two of you need somewhere to sit down and see whether you can make the decisions yourselves, now we’re talking about mediation.
And no, your attorney does not necessarily need to attend every conversation you ever have just because you’re separating. I suspect your monthly bill will survive the disappointment. Personally, if there’s money left over for another plant, I know where my priorities are.
Sometimes you need a lawyer.
There are questions I am absolutely not going to answer for you. What am I legally entitled to? Should I accept this? What are the legal consequences if I agree to this? Those aren’t mediation questions. They’re legal questions, and sometimes getting legal advice is exactly what someone needs before they can make an informed decision. There may also be situations where direct negotiation isn’t appropriate, where someone needs an advocate communicating on their behalf, or where court involvement and judicial authority are necessary. That isn’t mediation failing. That’s a different need requiring a different process.
The important distinction is that needing an attorney for something doesn’t automatically mean your attorney needs to become the vehicle for every conversation that follows. You can get legal advice. You can have an attorney representing you. You can ask questions when you have them. And there may still be conversations the two of you can have yourselves. Those things aren’t mutually exclusive, and neither is using mediation while attorneys are involved.
Sometimes you need a judge.
There are also situations where two people simply aren’t going to make the decision together. Maybe you’ve talked about it every conceivable way. Maybe one person won’t participate. Maybe there are significant safety or coercion concerns. Maybe there’s a legal issue that requires a ruling. Maybe somebody needs the authority of the court behind an order. A mediator doesn’t have that authority, and we’re not supposed to.
I can’t order either of you to do anything. I can’t compel an agreement. I can’t listen to both sides and announce who wins. That’s not an unfortunate limitation of my job. It’s the entire point of my job. If a decision needs to be made for you, you’re looking at a different chair. Sometimes that’s exactly the chair a family needs.
And sometimes you just need to have the conversation.
This is the space I think gets overlooked. Not every disagreement is a legal argument. Sometimes two parents need to figure out what summer is going to look like. Sometimes two people agree the house needs to be dealt with but haven’t actually talked through what dealt with means. Sometimes the disagreement started with money and, twenty minutes later, we realize you’re working from two completely different sets of numbers. Sometimes you’ve both been saying “I’m flexible” for six months while meaning entirely different things.
Those conversations don’t automatically need someone advocating for each side or somebody in a robe making the final call. Sometimes there’s still a decision the two of you might be able to make, but the conversation hasn’t gotten you there yet. That’s mediation territory. My job isn’t to tell you where the conversation should end. It’s to give it enough structure that we can actually find out where it goes.
The biggest difference is who makes the decision.
This is where mediation and litigation really separate. In mediation, you keep the decision-making. I keep the conversation moving. That doesn’t mean I sit quietly in the corner while the two of you recreate the argument you had in the kitchen last Thursday. I’ll ask questions. I’ll slow things down. I’ll make sure I understand what each of you means. I’ll point out when we’re talking about three different things as though they’re one thing. And if we’re going in circles, I’m probably going to mention it.
What I won’t do is decide the answer. Litigation has a different job. When an issue is put before the court for determination, a judge has authority that I don’t have. The court can make a decision even when the people involved haven’t made one together. Sometimes that’s exactly what’s needed. But it’s fundamentally different from sitting in mediation and asking, Is there a decision the two of us can make?
You don’t necessarily have to pick a team.
I think this is where the whole mediation versus litigation conversation gets a little misleading. Real life isn’t always MEDIATION on one side of the boxing ring and LITIGATION on the other. Someone can have an attorney and still mediate. Someone can get legal advice before making a decision in mediation. A family already involved in litigation can still mediate issues. And sometimes people resolve some things themselves while something else ultimately needs court involvement.
These processes can intersect because they do different jobs. So I’m not particularly interested in convincing someone that mediation is universally “better” than litigation. It isn’t. I’m interested in whether mediation fits the conversation you’re actually trying to have. If it does, great. If what you need is legal advice, get legal advice. If what you need is a court order, mediation isn’t going to magically turn into a courtroom because we really, really want it to.
Yes, there’s also the money.
I know. I brought up the monthly bill, and I’m not going to pretend cost isn’t part of the conversation. Attorneys are professionals providing a professional service, and professional services cost money. Sometimes that expense is necessary and worth every penny because you need exactly what an attorney provides.
But if every disagreement automatically becomes an email to an attorney, which becomes an email to another attorney, which becomes an email back to the first attorney, we’ve now involved four people in a conversation that originally belonged to two. There may be a very good reason for that. There also may not be. That’s worth thinking about before my future fiddle-leaf fig money disappears into six-minute billing increments.
I’m kidding about the plant. Sort of.
Cost isn’t the most interesting difference between mediation and litigation anyway. The bigger difference is what happens to the conversation once you choose a process. When attorneys are advocating, they’re doing exactly what they’re supposed to do: representing their client’s interests within a legal framework. When a judge is deciding an issue, the court is doing exactly what it’s supposed to do: applying the law and making a determination. When I’m mediating, I’m doing something different. I’m protecting a space where the participants are still making the decisions themselves.
Those aren’t competing philosophies. They’re different jobs.
And before deciding which one you need, I think there’s a much simpler question worth sitting with: What needs to happen next?
Maybe you need legal advice before you’re comfortable making a decision. Maybe you need someone advocating specifically for you. Maybe there’s an issue the two of you simply cannot resolve and you need a judge to decide it. Or maybe, underneath everything that’s happened, the two of you still have a conversation you might be able to have.
The answer doesn’t have to be the same for every issue, and it doesn’t have to stay the same forever. Lawyers have their place. Courts have their place. Mediation has its place.
The important part is figuring out which chair you actually need.
And, whenever possible, preserving a little room in the budget for plants.