Mediation means 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, people refer to this as mediation. In the collar of Illinois including McHenry County, Kane County and Lake County, mediation refers to the court-mandated mediation in parental responsibilities or parenting-time allocation disputes. We are also seeing more cases involving financial mediation. But there are dangers to financial mediation if done without sufficient financial disclosure
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 mediation, even if the mediator is a lawyer, that lawyer’s role is not to provide advice. Instead, the mediator/lawyer’s role is only to to facilitate an agreement.
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. This includes divorce, paternity, and relocation cases. 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 continue in the litigation process. But keep in mind, this is not an all-or-nothing proposition. Often, some things are resolved within mediation while others are not.
Is mediation required?
Yes. Except if the case is deemed ineligible for mediation. Usually this means that 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?
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. Yet often this doesn’t happen often. A good lawyer helps to balance the scales. A mediator might make up for a bit of the power imbalance between the parties. Yet the danger is that the mediator will want the mediation to succeed and reach an agreement. So if there is a power imbalance, it is critical to work with your lawyer throughout the mediation process to discuss the pros and cons. This discussion will may focus on your bottomline and options to potentially try to avoid an impasse.
There has been a plenary order of protection entered against my spouse. Is mediation required?
No. 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 the parties might agree to shuttle mediation in such 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 you should first come to terms regarding your parenting plan if there are minor children. Only then, proceed to address the issues of property division and maintenance (alimony), and child support with a mediator. These sorts of issues 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. See the Gitlin Law Firm’s Q&A regarding Discovery.
Are there advantages to mediation?
Yes. The process is less adversarial and may be less stressful. The resultant agreement might be a better product because it had the open input of both parties.
