Basics of Mediation
Lawyers & Mediation
What is Divorce Mediation?
Divorce mediation is a voluntary, cooperative settlement process. A neutral professional, called a mediator, helps parties reach informed and pragmatic decisions. Mediators help parties reach agreement in an orderly fashion with mutual respect. The mediator helps you define the issues to be settled, gather and analyze the necessary information, and communicate effectively. The mediator cannot force you to agree to anything. Once an agreement is reached through mediation, the parties to the mediation will then have the option make the agreement enforceable in court.
Do I need an attorney to mediate?
Mediators do note take sides or give legal advice. Therefore, having your own attorney can be useful. However, if you reach an agreement via mediation, there is less chance of fighting in court. And that means lower lawyer bills. Instead of fighting it out in court, you can get an uncontested divorce after divorce mediation in Illinois.
Can custody problems be mediated?
Yes, custody and visitation problems can be mediated. And as an Illinois divorce mediator who is also an Illinois family law attorney, my goal is for mediating parents to understand the legal implications of their agreement. For example, I can explain the differences between sole and joint custody – it is not always what people think. And further, I dispel the myth of “physical custody” – something that is no longer ordered in Illinois courts.
When necessary, I can help parents develop creative solutions to solve custody problems. As single parent myself, I am well-familiar with the challenges parents have to deal with.
What does mediation cost?
The average total cost of mediation for both parties will vary depending upon the level of agreement or disagreement between the parties, the complexity of the issues involved, and how long the agreement takes to complete. As an attorney and a divorce mediator, I am well-positioned to assist both parties reach agreement.
What happens when mediation is completed?
Mediation will end one of several ways:
- Agreement is reached: If agreement is reached, the parties to mediation may have it reviewed by lawyers, then made part of a marital settlement agreement, or parenting agreement.
- Agreement is not reached: If agreement is not reached, the parties often litigate.
My spouse refuses to try mediation, what can I do?
No one can be forced to mediate. However, as an Illinois divorce mediator, I can share ideas with people regarding how to encourage a spouse to participate in the process.
We already hired attorneys and started litigation, what can we do?
There is nothing wrong with hiring an attorney so that you can be properly advised of your rights. On the other hand, hiring an attorney does not mean you must litigate. Lawyers with integrity want their clients to settle cases with acceptable outcomes. If you feel that mediation might help, and litigation has already started, you can pause litigation to see if mediation might work.
The judge ordered us to mediate? Now what?
If you have been ordered to mediate your case, you can contact me to get started. I can often start the mediation process on short notice. And as a convenience, I provide mediation services in the evening and on weekends.
Q: What is mediation?
Mediation allows both parties to reach a fair settlement with a neutral third party. It allows the couple to control the time-frame and can be economical, while a traditional divorce can be time consuming and costly.
Couples can make joint decisions regarding their finances, custody issues and property versus having a judge issue orders regarding their lives and the well being of their children.
Mediation offers a win/win solution while the increased conflict in a traditional divorce only proves to show a win/lose solution.
Q: What does it cost?
As mediator, my fee is $250.00 per hour, including all time spent in meetings, on the telephone, or preparing documents. Payment is due at the end of each mediation session or prior to preparation of any agreements or documents which have been requested.
In addition to the cost of mediation, it may be necessary for at least one of the parties to retain an attorney for the divorce proceedings, unless the parties decide to represent themselves. There is a $215.00 court filing fee for a divorce petition. Parents must each take a Court approved parenting class prior to filing for a court date.
Q: Can mediation be successful if the couple has already retained lawyers and are involved in the court process?
Yes. Being involved in the adversarial process used in the court system can convince couples that alternative dispute resolution is a better option for them. When couples realize how much of the court process is completely out of their control, they understand the benefit of a client directed approach, where the couple retains control of and can select and negotiate an outcome that they can live with.
Q: What if the mediator believes one member of the couple is not revealing all of the assets of the marriage?
Mediation cannot work if either party believes that the other is not revealing all of their assets. Each person fill out a court Financial Statement listing all income, assets, debts and expenses which is signed under the “ penalties of perjury”. If joint agreements are made by the couple on the basis of incomplete or erroneous information, what would otherwise be a final division can be subject to court review because of the fraudulent financial statement.
In other words, people who can’t achieve complete trust that all the assets and income from the marriage will be revealed in mediation should choose an alternative process for divorce, where assets and income may be “formally discovered” through depositions and interrogatories.
Q: If the mediator is a lawyer, why should each party need to seek the advice of another lawyer?
Having two independent review attorneys, one for each spouse, review the joint agreements provides “checks” on the exactness of legal language being used, and a review of the “balances” or joint agreements which have been made in the joint best interest of the couple. Independent advisory attorneys attempt to insure that the individual legal rights and best interests of each party are met within the joint agreements.
Q: What if the couple constantly fights in mediation, how can they communicate?
Mediators structure and control the process of mediation so that, for the most part, fighting between individuals does not continuously occur. Being able to assert separate opinions forcefully in mediation is a good sign of the individuals not being dominated or coerced by one another. Heated discussions in mediation sessions are not necessarily negative. Mediators convey graciously but forcefully that they are in charge of the process including when it needs to be suspended for the day or permanently.
Q: What techniques do mediators use to address power/knowledge imbalances between a couple?
One of the most frequently encountered imbalances is when one of the parties has more knowledge of finances, tax consequences, methods of valuation of assets, business and pensions. By referring the other spouse to experts in one or more of those areas, a “knowledge imbalance” may begin to be redressed. The advisory attorney during mediation may be a forceful advocate for and coach of a party whose power and knowledge needs augmenting.
Q: Does the cost of advisory/review attorneys increase the cost of mediation dramatically?
The use of advisory/review attorneys increases the cost of a completed divorce agreement, but not significantly. The increased costs are not dramatic and the use of advisory attorneys should wisely be planned for as an important component of a thorough mediation process which result in a collaboratively achieved divorce agreement.
Q: Can the mediator go to court for the divorce hearing?
No. The parties, with the assistance of their advisory attorney, get a hearing date with a judge and then may go to court with attorney(s) or go by themselves, representing themselves “pro se”. An attorney-mediator would not appear in court with mediation clients as it may create a perception to the court, or the couple, that the mediator had represented them.