In most cases, I would recommend both, but there are exceptions.
In many cases, you can save thousands of dollars by having a mediator help you and your former partner go as far as you can in mediation. The mediator’s area of expertise is facilitating communication – helping both parties say clearly what matters to them and why, hear what matters to the other person and why, consider a variety of ways to resolve their issues, and develop agreements about parenting plans and financial issues. It is still a good idea to get some advice from a lawyer along the way and to have him or her review a proposed agreement before you sign it, but there may be no need to pay a lawyer for more than that. (In saying that mediation will be much less expensive than fighting in court, I am refering to mediators like me. I charge only $95 per hour. Some mediators are also attorneys and therefore charge as much as adversarial attorneys -- often $300 to $500 per hour in northern Virginia.)
In most cases, you can also spare yourself and your children a lot of anger, anxiety, and misery by using mediation as your primary approach to divorce. Mediation teaches negotiation skills that make it easier for people to resolve disagreements. Adversarial litigation can send anxiety and hostility skyrocketing. Litigation damages relationships. Mediation helps you build a foundation for cooperative co-parenting in the future.
In addition, mediation is faster than litigation. Getting issues resolved quickly reduces the negative emotions often associated with divorce.
Now, some exceptions:
1. If your former partner knows much more about your family’s financial situation than you do and seems likely to be dishonest about it in mediation, work mostly with a lawyer.
2. If you are easily intimidated by your former partner and have difficulty speaking up for the things that matter to you, you need either (a) an experienced mediator who can balance the battlefield of communication or (b) a lawyer to do your talking for you. Or both.
3. If your primary goal is to get revenge by punishing your former partner as much as possible, regardless of the financial cost or the emotional damage to you, your children, and your ex-partner, you probably want to get a lawyer – a mean one. Lawyers are trained to represent their clients zealously. Mediators are trained to help people negotiate constructively. Before you take this route, please read The Truth About Children and Divorce by Robert Emery. Letting your anger drive your behavior can cause terrible damage. If you have children, this is definitely not the way to go.
What Research Shows: A large body of research demonstrates that, compared to couples who did not use mediation, people who did get help from a mediator are more likely to honor the terms of their agreement, will have less conflict after the divorce, and are less likely to return to court to revisit issues associated with parenting plans or finances.
ONE MORE TIME: I DO recommend getting advice from a lawyer and having a lawyer review an agreement before you sign it. I also strongly recommend doing most of the work with a mediator. You save money, get things resolved faster, go through less distress, and are likely to come out with a better plan.