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Mediator vs. Attorney: What’s the Difference?

When going through a legal dispute, there can be confusion regarding the decision to use a traditional attorney or a mediator. Many times, people mistakenly believe they must pick between the two options or that the two services are the same.

Both mindsets are understandable: With the similar nature of the two approaches, it can be easy to blur the roles of a mediator and attorney. So what exactly is the difference between a mediator and an attorney? And which option is best?

To fully understand which option is right for your situation, the first step is to understand how mediation and litigation differ.

Difference Between Mediation and Litigation

Both mediation and litigation are ways to resolve family law issues such as divorce and custody disputes. While they deal with similar cases, litigation and mediation reach final outcomes in different ways.

Litigation relies on courts or judges to decide family law disputes. During litigation, each disputing party can use an attorney to represent their interests and negotiate on their behalf. Even when a case is litigated, however, the mediation process is still used.  In North Dakota, in cases involving minor children, the state has a mandatory early mediation program that provides the parties six free hours of mediation. Privately retained mediators are used, too, typically later in the case.

Mediation is an Alternative Dispute Resolution method, which is encouraged as a more cost-effective alternative to litigation. The mediation process is meant to be a cooperative negotiation between two parties with a neutral third party—a Mediator—who is trained to help clearly define the issues at hand and assist in agreements that are beneficial to the whole family.

At the end of the mediation process, the two parties come to an agreement that is ultimately crafted and decide upon by themselves.

Mediation can be a better choice than litigation for many different reasons. Some of the more predominant ones include lower legal fees, more personal control, a quicker resolution, and more privacy.

Typically, mediation results in more tailored agreements and greater satisfaction for all involved. In some states, mediation is now required before any disputes are brought to a courtroom.

Difference Between a Mediator and an Attorney

A mediator is an independent and neutral third party who can help negotiate agreements between two disputing parties. Mediators may actively help inform both parties in negotiations, but they may not give legal advice; and final decisions are crafted by the disputing parties.

Ultimately, mediators help individuals focus on the key issues holding up any potential resolutions.

On the litigation side, an attorney represents only one party, with the primary goal of achieving the best possible settlement for the individual they represent. When assisting in divorce cases, attorney’s help negotiate on behalf of their client and actively craft settlements on their client’s behalf.

While a mediator’s main role is to encourage open dialogue and help move towards a mutually-beneficial agreement for both parties, an attorney’s role is to actively negotiate on behalf of the best interests of their individual client and that client’s family.

Can an Attorney be a Mediator?

While the roles of mediators and attorneys differ, a single individual can be trained in both mediation and attorney roles. Most skilled family law mediators are attorneys experienced in family law disputes.

Mediators familiar with the legal rights and options for both parties can be great assets, as they can more effectively guide discussions and can better refine any potential resolutions.

At Gjesdahl Law, we have qualified attorneys that are fully versed in family law mediation in both North Dakota and Minnesota and can help disputing families come to an agreement that is in the best interest of the whole family. Some of our attorneys are trained, experienced mediators. All are experienced representing clients in the mediation environment.

Is an Attorney Necessary for Mediation?

While attorneys are not necessary for mediation, we strongly recommend involving an experienced family law attorney throughout the mediation process. 

Any legal advice needed during the mediation process must be given by your own lawyer. Mediators are not ethically allowed to give participants legal advice. If you choose to partake in a mediation session alone—which we consider a mistake—at least consult an attorney before and after the mediation sessions take place.

Mediation can be a critical step in determining parenting time, child support, the division of property, and ultimately, your family’s future. An attorney can be a vital resource during this mediation process and can help inform you about the best options available for you and your family.

Learn more about the mediation process by visiting our mediation page and our compiled mediation resources.

In need of mediation services? Contact us today.

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Leah J. duCharme

A native of Aberdeen, South Dakota, Leah is a Senior Shareholder at Gjesdahl Law, P.C. After graduating from Moorhead State University, she joined the firm in 2000 as a parale…
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