What is a mediator? An easy guide to mediators vs divorce lawyers

The first sentence of Leo Tolstoy’s Anna Karenina reads, ‘Happy families are all alike; every unhappy family is unhappy in its own way.’ When it comes to unhappy families separating and settling their affairs, so too is each case unique and require differing approaches.

By Yianni Kordos, Senior Associate at AFL-Kordos Melbourne

With the heightened emotions (and sometimes bitterness) that comes with a breakdown of a marriage or de facto relationship, people assume that engaging advocates to fight on their behalf is the only path forward. 

While this is a valid approach, parties going through a separation should consider all their options and whether engaging in a private mediation process could obtain a similar or more beneficial outcome. 

It should be emphasised that having assertive and sensible legal representatives will usually assist parties in narrowing the issues in dispute and empowering clients to feel comfortable settling matters, which usually results in a successful outcome.

You might be asking yourself right now, what is a mediator and possibly trying to understand whether to engage a divorce lawyer or divorce mediator – or even both. So what’s best for your situation? In this article, we explore the differences in definition and approaches when choosing between a divorce lawyer and a mediator to help you find the best way forward. 

What is a divorce mediator, and what do they do?

A divorce mediator is a trained third party (usually either a family law solicitor or barrister) whose job is to facilitate negotiations between the parties, encouraging discussion and ensuring the parties are moving towards reaching a mutually agreeable conclusion. 

Mediators, however, do not provide legal advice to the parties. People going through a separation can either engage a mediator privately or with legal advocates acting on their behalf.

Mediation does entail a form of advocacy, hence why representation in the process is critical. 

In what situation might a mediator be the best path forward?

The first prerequisite for a successful mediation is a mutual agreement of the desired outcome. By this, we mean:

• Both parties can remain cordial with each other during the process; 
• But also for each other to understand that a negotiated outcome necessitates foregoing their ‘best case scenario’ to achieve an outcome that is a compromise.

Secondly, the parties ought to be capable of amicable negotiations. Although they do not have to be the best of friends, this is a less adversarial process. Accordingly, the parties need to have a baseline of commitment to an overall settlement to ensure they do not stray from the overall goal of settlement.

Finally, private mediation requires both parties to be satisfied with the level and quality of information. Settlements in family law usually occur once both parties feel empowered and fully understand their financial affairs. 

Too often, people engage in mediations when they are ill-prepared or not properly equipped. This can result in a worse outcome than if mediation had not occurred at all. Where there is an imbalance of information (such as one party being in control of finances and not providing all the necessary information to understand financial matters), it follows that the parties are not on a ‘level playing field’ and the outcome will likely be unsatisfactory.

You can learn more about our specialist dispute resolution and mediation services here.

Why and how does a divorce lawyer differ from a mediator?

A divorce lawyer is simply put, a person who acts on behalf of one of the parties as an advocate. Their job is essentially two-fold;

• They provide legal advice to a party as to their entitlements and range of legal outcomes available;
• as well as preparing and putting forward their client’s case, in either court or mediation as the case may be. 

In what situation might a divorce lawyer be the best path forward?

You should note that engaging a divorce lawyer does not remove the possibility of mediation in family law disputes. In fact, any experienced specialist in family law would consider all avenues of dispute resolution. 

Sometimes, a party in a dispute will not be forthcoming with all the necessary financial information. In such circumstances, mediation should not take place. A lawyer can assist a party in obtaining all relevant information to ensure their client can properly understand their financial circumstances.

Similarly, the parties may be acrimonious, and a lawyer is necessary to ensure a party is adequately empowered with strong advocacy to put their case forward. 

In our view, it is a divorce lawyer’s job to remain objective and professional to avoid increasing any animosity that may already be present.

Divorce lawyer vs mediator: What path is best for you?

Ultimately, the function of both mediators and lawyers are similar; to assist parties going through separation move towards a resolution and out from what is usually a complex and challenging point in one’s life. 

Their main difference lies in their methods:

• A mediator’s primary goal is to establish common ground and facilitate parties moving towards mutually agreeable conclusions; 
• Whereas a lawyer seeks to empower, advocate, and obtain the best possible outcome by putting forward their client’s case. 

Each has their unique role, employing both methods and philosophies as needed. This is how most family law matters can be resolved, without the need for the uncertainty and cost (both financial and emotional) of litigation. 

Sometimes, you may be advised that litigation will provide a more advantageous outcome. Your lawyer will advise you if this approach is best for you.

To determine which process best suits your matter, request a callback via the form below from our friendly team and family law specialists to discuss your options.