Chapter Three: Should I Hire a Mediator Instead of Hiring an Attorney?
In San Diego, there are many options for legal representation for divorce. There are five courts in San Diego which handle divorce cases and there are two in San Diego, one in North County, one in El Cajon and one in the South Bay. The first option is to hire an attorney to protect your rights and try and obtain your legal goals. This is an attorney who will only represent you. The second option is to hire an attorney however this attorney [mediator] will not only represent you however will represent both you and your spouse. As with all strategies and techniques, there are advantages and disadvantages with each approach and these are explained in more detail below. This is not to be confused with child custody and child visitation mandatory mediation under the Family Law Code and in practice in all the court’s in San Diego. The third strategy is for you to represent yourself.
Divorce Attorney Advantages: You have an attorney representing your interests. In our firm, we only represent one spouse and never both in a divorce matter.
Divorce Attorney Disadvantages: You will each have to pay for one attorney which can increase legal fees and costs. You will also have two attorneys involved rather than one attorney which can lead to increased tensions and conflict if the two attorneys cannot work well together.
Mediator Advantages: You will only have to pay for one attorney. This may lead to reduced tension and conflict if two attorneys cannot work together.
Mediator Disadvantages: You do not have an attorney representing only your interests. Since your interests are adverse, the mediator’s suggestions for support payments [for example] may not be what is in your best interests. In addition, if the case does not settle in mediation, then your legal fees will increase since the mediator cannot represent either spouse in a pending divorce due to the confidential information shared in the mediation. As such, if the case does not settle in mediation, you and your spouse will then each have to hire an attorney which will mean three attorney fees instead of two. As an example, in a personal injury legal action, if you are driving on the freeway and a drunk driver hits your car with you driving and your spouse in the passenger seat than both of your interests are exactly the same. There is no conflict of interest in an attorney representing both of you since you cause of action is only against the driver and/or registered owner of the vehicle which hit you and not against each other.
In a divorce legal action, conversely, you are adversarial litigants. In fact, in support, the payor has a financial incentive to pay less and the payee has a financial incentive to receive more. As there in an inverse relationship between the percentage of custody and visitation and the amount of support, the adversity can intensify. All strategies and techniques have advantages and disadvantages and these can only be properly implemented upon informed and intelligent decisions.