Every so often, I am contacted by prospective parties saying they want to do their divorce “without lawyers.” For the reasons outlined below, I think this is almost always a mistake.
Most of the time what these people really mean, I believe, is they want to avoid paying thousands of dollars in retainers and legal fees – because they think they will be able to proceed on an amicable basis. But a good family law attorney will never “run away” with the case, forcing a trial when the client and the opposing party are able to reach an agreement.
What people often do not realize is that many Maine lawyers are willing to offer unbundled legal services. This means the lawyer will consult on an hourly, as-needed basis, instead of charging a retainer to handle the entire case. Unbundled legal services is a way for people to do as much of the legal work on their own as they can – and a great way to help keep costs down.
In my experience, and in almost every case, consulting with an attorney before a mediation session is useful for two reasons:
First, family law is complicated. Even where a party chooses not to have a lawyer handle the entire case (that is, to not be “represented” by the lawyer), a consultation with an experienced family lawyer is helpful. Knowing what the range of outcomes might be if there is no agreement or what will happen if a judge or magistrate has to decide the issue(s) helps make mediation productive.
Second, there is almost always formal paperwork required to deal with retirement assets, real estate, etc. This paperwork is almost always best done by an attorney. For example, to transfer a portion of a 401(k) plan asset without a tax or penalty requires a special document: a Qualified Domestic Relations Order (QDRO), pronounced “quad row.” A QDRO can even be a challenge for a lawyer to write up.
Under Maine law, there is no real significance to who files first (that is, who is the moving party or “plaintiff”). Many people start the divorce (or parental rights case) and then seek to reach an agreement. Others prefer to begin the divorce process by trying to reach an agreement before either side files any papers in court. Although either way can work, there is often an important reason to work out the agreement before filing if possible.
Once a case is filed, the court process pushes the case along on the court’s timeline. This may move the case more quickly than the parties wish. There are, of course, ways to slow the court process down. But pushing back against court-imposed timelines can be annoying.
So typically, the most cost-efficient way for parties to proceed who believe they can do so amicably is:
- Where there are no issues of domestic violence or abuse, the parties meet at the kitchen table (or at a restaurant or other public place where people are more likely behave appropriately) and try to work out their agreement. They just write down in plain English what the agreement is regarding the children, the property, and the support. Then one party or the other takes it to an attorney to put in formal language. This proposed agreement is then sent to the other party, who should review it with his/her attorney.In Maine, it is not ethically permitted for one attorney to represent both parties. But using unbundled legal services can help keep the costs down. The drafting attorney (one who prepares the document) will charge for the time involved in writing the agreement. The reviewing attorney will likely spend only an hour or two.
- If direct discussion is too difficult or unsafe, one party just asks a lawyer to write up a proposed settlement agreement. Again, this agreement would then be sent to the other party, who is advised to review it with an independent attorney.
- Sometimes parties choose to have the discussion of the issues that need to be addressed facilitated by a mediator. Even in such cases, it is helpful for each of the parties to have first consulted with an attorney to understand what is reasonable to expect. The mediator – being a neutral – cannot advise either party if a proposal is good or bad, only if it is reasonable. But using a mediator can help reduce costs by avoiding lawyers sending different versions back and forth as the parties continue to negotiate.
CONCLUSION: In my view, where parties are trying to minimize legal expenses mediation is useful if:
- Both parties decide they would like the help of a mediator in facilitating the discussion and reaching an agreement.
- if the parties get “stuck” in reaching an agreement on a particular issue or set of issues.
The reason for this is that what a mediator does – at least what I do – is to try and help folks work through issues and work out disagreements to avoid the need for a contested hearing in court. A side benefit of this is that it tends to reduce legal fees, sometimes significantly.
My belief is that in almost every family law case when parties disagree, mediation is a better way to proceed than having a judge or magistrate to make the decision(s). No matter how solid you feel your case is, a good lawyer will never give a guarantee of the outcome of a trial. Crazy things can happen in court. So while agreements in mediation (and the results in court) are rarely perfect, agreements reached through mediation may be workable (or livable) and better than the alternative – that is, may produce a better result than spending a ton of money, going to court, and losing.
NOTE ON MEDIATORS AND FEES. It is probably an oversimplification, but there are basically three kinds of divorce/family law mediators.
- There are mediators who are not lawyers, some of whom are very good.
- Then there are mediators who are lawyers (or legally trained) but not actively practicing law. [I am in this category.]
- Finally, there are lawyers in active practice who offer mediation services.
Each category charges more than the next. In both of the first two categories, once an agreement is reached, it is typically NOT a formal document. Instead, it is usually a bullet point summary of the points of agreement. Even when it is a more formal document, there are typically other technical documents which are difficult for non-lawyers to prepare. So in most cases, a practicing lawyer will still be needed.
It might seem the least expensive approach is to just use a practicing lawyer-mediator (one person instead of two: a lawyer and a mediator). But even in such cases, there is still the question of how does each party get advice about what is in his or her “best interests.” Also, practicing lawyer-mediators almost always have a higher hourly rate than legally trained mediators who are not practicing lawyers.
Thus, looking at the TOTAL COST of getting divorced, often the most economical route will be:
- Each party consults with an independent lawyer as needed (that is, uses unbundled legal services); and
- Using an experienced mediator who is not a practicing lawyer to help move past any disagreements.