15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005

15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005 • 262-788-5335

Mediation With or Without an Attorney

If you are getting divorced in Wisconsin or have a child custody or placement dispute, there is a strong possibility that your case will end up in mediation. In Wisconsin, when divorcing parents can’t agree on custody, placement, or visitation, mediation will be mandatory. When couples are divorcing without kids or do not have disputes over custody and placement, this process may be optional. However, even when it is not required, parties often choose to mediate. If your Wisconsin divorce case is headed to mediation, you may be wondering: Should I go through mediation with or without an attorney?

What Happens During a Family Law Mediation?

Family law mediation is a non-binding process during which the parties meet with a neutral third-party mediator. The mediator is usually (but not always) an attorney with family law experience and may even be a former judge.

This individual is trained to help facilitate agreements regarding divorce, custody, child placement, child/spousal support, property division, and other issues that crop up in family law cases. Mediation is designed to be conducted in a way that is respectful to both parties.

No one will be forced into an agreement during the process. Mediation can promote the peaceful resolution of as many issues as the parties decide. In a divorce, the parties can choose to mediate all, or only some, of their case issues.

a couple is engaging in mediation with or without attorney

Mediation Is a Good Alternative to a Contested Hearing

One of the primary advantages of mediating instead of using an adversarial court process is that in mediation you have the possibility of solving problems more creatively, leading to more options. Wisconsin law limits what a party can ask for in contested family law cases.

Likewise, a court will only be able to grant certain things after hearing evidence. By contrast, when parties go through mediation, they can agree to terms that work for their circumstances but may not be an available remedy in court.

For instance, Wisconsin is a community property state, meaning that you and your ex will own what you earned or bought during the marriage equally with certain exceptions. The court will divide your assets in a way that puts you in a relatively equal position.

However, in mediation, you and your ex could decide to divide your assets in a different proportion. Likewise, under Wisconsin law, an obligated parent does not have to pay child support after their child reaches 18 (or not past 19 if they are still in high school). This is true even if the child has special needs that are expected to last into adulthood. In mediation, you and your ex would have the flexibility to agree to create a support term that would provide for your child’s long-term needs.

In addition to giving you more freedom to develop flexible terms that work for you, mediation is also far less expensive than going through a contested hearing. By choosing to mediate, both parties can maintain control over the outcome of their case, which helps minimize stress as well as cost.

Do I Need an Attorney During Mediation?

Many mediations are conducted without either side being represented by counsel (the mediator is neutral, which means he or she does not represent either party). Often this is done as a cost-saving measure, or sometimes it’s simply because the parties don’t feel they need full-blown representation, just help with communicating and reaching a final agreement.

Either party can change their mind at any point in the mediation process and consult with an attorney, or have final documents reviewed by counsel before signing paperwork. The mediator cannot give advice or recommendations to either party but can explain the law and help generate options for the couple to consider.

The mediator can also give feedback (if requested) on what a court “might” do under the facts of that couple’s unique case. That feedback is only an educated guess and/or opinion based on the mediator’s experience, but some people like knowing what “might” happen in order to help them decide the best way to compromise.

In other cases, a divorcing party may want more advocacy in mediation, someone to sit with them and actually give them advice and tell them what they “should” do. Those people may benefit from having an attorney represent them and be present in the mediation process.

An experienced family law attorney can help you prepare for mediation, and will actually speak on your behalf if you wish. Your attorney can help you evaluate the proposed terms and consider whether they are reasonable. Details you might not recognize as significant will catch the eye of an attorney who has more experience in dealing with the content of settlement agreements.

If you can reach agreements during mediation, you and your ex will be expected to sign something memorializing the settlement. If you choose the wrong words, there could be disagreements later about what the final documents should say. Legal language must be written precisely.

Your attorney can ensure that the right language is used during mediation and in your final divorce documents.