Mediation can mean different things in different contexts. Whenever a neutral third party attempts to help two parties at odds reach a resolution in an informal, non-binding proceeding, you may be participating in a mediation. In the counties where we practice such as McHenry County, Kane County and Lake County, mediation usually refers to the court-mandated mediation in disputes regarding parental responsibilities or parenting-time allocation. And mediation involving financial matters is used by some divorce attorneys. Financial mediation is of growing popularity.
I have heard about collaborative divorce. How does this differ from mediation?
In collaborative divorce each spouse has a lawyer at the collaborative table in a series of what are essentially four way conferences (conferences with lawyers and clients). Compare this to mediation regarding how parenting time is divided and decision making is allocated. Mediation regarding what was formerly called custody and visitation is generally done without the lawyers being present.
What is mediation in the framework of Illinois family law (divorce, paternity, custody) cases?
It is an attempt, by a disinterested third party, a mediator, to bring about an agreement on contested issues in a family law case, such as a divorce, paternity case, relocation, etc. A mediator makes no decisions. Mediation is successful if, with the aid of the mediator, the parties reach an agreement. If there is no agreement the parties must continue in the litigation process. But keep in mind that coming to an agreement within mediation is not an all or nothing proposition. Often, some things are resolved within mediation and others are not.
Is mediation required?
Yes. Except in usual circumstances where the case is deemed ineligible for mediation, mediation is mandatory before issues involving parental responsibility, parenting time, parental responsibility (decision making) or relocation of the children can be litigated.
Who should not mediate?
If there is a parent who cannot readily overcome the tendency to just give in to buy peace. If that is the case there is a significant concern that she or he may concede within mediation regarding important points involving the child’s best interest too readily. Settlements are made when both parties have relatively equal negotiating and financial power and equal access to financial information, but that doesn’t happen often. A good lawyer is a way of balancing the scales. A mediator should make up the imbalance between the parties, but the danger is that the mediator will want the mediation to succeed and reach an agreement. For that reason, especially if there is a power imbalance it is critical to be working with your lawyer throughout the mediation process as to the pros and cons of what is being discussed within mediation.
There has been a plenary order of protection entered against my spouse. What about mediation?
Mediation should not be required. For example, the rules of the circuit court of McHenry County state that there should not be mediation where there has been domestic violence. Perhaps it may be possible in certain cases for there to be what is called “shuttle mediation” in these cases. But this is unusual.
What should be mediated?
Typically issues involving what used to be called custody and visitation are mediated. The actual language of Illinois of what is mediated since 2016 is divided between two issues:
- The allocation of parenting time between the parents;
- How major decisions involving the minor children are allocated between the parents.
Financial issues can be mediated but the issues of divorce, property division and maintenance (alimony) are complex and should only be mediated by lawyers who have a thorough understanding of matrimonial law.
If I do not know the extent of my spouse’s income and assets, should I enter into mediation regarding financial matters?
No. You cannot divide the pie fairly until you know the size of the pie. Divorce proceedings allow for discovery, that is, obtaining production of documents, receiving a list of sworn answers to a series of questions (answers to interrogatories), submission of a detailed financial disclosure statement, (and in some cases depositions, etc.), so each party is fully informed of the financial facts and figures. If you enter into mediation regarding financial matters, you must know the financial facts.
Are there advantages to mediation?
Yes. The process is less adversarial and therefore less stressful, and the resultant agreement may be a better product because it had the open input of both parties, and therefore each party may be more satisfied with the agreement.