Consider a Mediator Over a DIY Divorce

Use these links to jump to different sections:

• Do I Need a Divorce Attorney?
• The Mediator’s New Close
• The Benefits of Mediation
• Are There Drawbacks to Mediation?

People with family law issues often decide to take a DIY approach: They resolve their divorce or custody matter and draft all necessary court documents on their own, instead of hiring an attorney.

Only a few decades ago, it was uncommon to find people representing themselves. As of 2018, 70 percent of divorcees in Wisconsin are self-represented litigants (SRLs). Unfortunately, most SRLs are not informed on court procedure or the law. As a result, the role of educating and informing SRLs has fallen on court staff.

Susan Hansen has practiced family law in Wisconsin for close to 40 years, and has witnessed this trend from the front lines. “Courts are now overwhelmed and swamped,” she says, adding that there are many reasons for this trend:

• Many consumers believe lawyers increase conflict
• Attorney fees continue to rise and are unaffordable to most consumers
• Information on the internet has allowed do-it-yourself representation

Do I Need a Divorce Attorney?

“A short marriage, no children, no real estate, no retirement, no significant disparity in income, there are people that could have a do-it-yourself without much risk,” says Hansen. “I think for most couples it isn’t that straightforward. So, what we see are people who didn’t understand marital property, who don’t understand child support formulas, who don’t understand that in a longer marriage when spousal maintenance can be ordered.”

To obtain the legal information necessary to make informed decisions, people typically need to hire an attorney.

“For many of the do-it-yourselfers, I think it’s a mistake because they don’t know what they don’t know. They can enter into an agreement without thinking of the ramifications. They can enter into an agreement that a court rejects. Or, because it wasn’t done well, they have issues after their divorce and must return to court.”

Worse may be the people who rely on their partner for making informed decisions. “You have the issues of one spouse feeling intimidated or outright threatened, or any history of domestic violence, that could influence a person’s decision to comply and agree with whatever their spouse proposes,” Hansen adds.

The Mediator’s New Close

A mediator’s role is as a neutral third party, and divorce mediation is “a bridge between do it yourself and two lawyers,” Hansen says. “It meets a need.”

A 2017 law allows a mediator in Wisconsin to mediate a couple’s or parental dispute and draft the necessary court documents to record their agreement.

Prior to the law, once a dispute was mediated, the parties were on their own when drafting the necessary court documents. The new ethics rule allows a lawyer-mediator to serve in the role of neutral without binding the mediator by the requirements of a lawyer-client relationship.

The Benefits of Mediation

Hansen lists many benefits to mediation over litigation, including:

• Clients craft their own solution versus having a lawyer or judge influence the solution
• Mediation is a private process that encourages open conversations versus the positioning that occurs in court litigation
• The costs and time involved should be much less than each party hiring their own attorney

Mediation clients still receive legal information. “If part of the issue is that one person has always run the finances, the other has no idea,” Hansen says. “Part of the role of the mediator is to assure that there is full education that brings balance, so that whatever they decide it is a fully informed decision.”

Are There Drawbacks to Mediation?

Although mediators can provide legal information to participants, mediators cannot provide legal advice. “Some people need and want individualized legal advice. They want to be one on one with a lawyer who evaluates what a court might do. They want that outside advocate on their behalf,” Hansen says.

Fortunately for the mediation participant, the option to hire an attorney is always available during the mediation process, as is the option to go to court for issues that are not resolved in mediation. 

However, for those who desire only accurate legal information to make their own decisions, an experienced Wisconsin family law lawyer-mediator will serve that role—now from start to finish.

For more information on the divorce process, see our overviews of family law, divorce law, and mediation and collaborative law.