What is Divorce Mediation?
Divorce mediation involves a qualified neutral attorney mediator meeting with both parties to a divorce to help them resolve issues relating to property allocation, custody, child support, parenting time, spousal maintenance and other issues divorcing couples must decide. The mediator facilitates communication between the parties as they work out the issues in their divorce, and how they would like to see them resolved. The mediator helps the parties prioritize the needs of their children and develop a parenting plan that is beneficial for the parties and their children. A mediator’s duty is not to the individual, but to both parties’ goal of reaching an agreement while avoiding court. This prevents the mediator from serving as an advocate for either party.
Couples attending mediation are encouraged to seek independent counsel with an independent attorney to finalize their case as mediators must remain impartial. It is even helpful to consult an attorney before mediation and in between the mediation sessions. It is helpful to have an attorney who is well versed in the mediation process, and can support your desire to mediate the case.
The parties need to agree to participate in mediation in good faith.
Because of the nature of the mediation process, the parties need to agree to participate in mediation in good faith, as they will be discussing what they want for their family and for their future. The mediation process allows the divorcing couple to develop an agreement that reflects their needs and the needs of their family rather than having a judge direct their family’s future and the financial outcome.
Mediation can be a win-win proposition if those involved are honestly committed to the process. Ideally, the mediation process will spare the divorcing couple angst, alienation, and money. The best mediators will provide information and present options, alternatives, and different scenarios for problem solving. While courtroom proceedings are open to the public, mediation is a confidential process that will help protect your privacy. Discussions and disclosures in mediation can also be protected from disclosure in future litigation.
When an agreement is reached during mediation, the mediator may help you memorialize the agreement in an executed Memorandum of Understanding. Once you have a signed Memorandum of Understanding, the parties should each have it reviewed by an attorney, who can incorporate it into a formal agreement that can be entered with the Court.
What are the Advantages of Mediation?
- Mediation is less costly than traditional litigation.
- Research and experience show that two parties, working with a trained mediator, can usually reach a more satisfactory solution than a judge can impose. Parties can agree to unique solutions and unconventional arrangements which no judge could order.
- When parties agree to a solution, they are usually more inclined to honor it and they feel better about it later.
- Mediation is private. If parties do not wish to air their dirty laundry, they can resolve all of their issues in private, off the public record. The parties each sign a mediation agreement before the mediation process begins so that any secrets revealed in the course of mediation are kept confidential and cannot be used in subsequent litigation unless the parties agree otherwise.
What are the Disadvantages of Mediation?
Ms. Bennett does not believe there are any real disadvantages to mediation. That being said, not every matter can be mediated because the process requires two willing participants. Two willing participants can overcome most disadvantages through proper planning and the mediation process.
Some people are afraid they might be taken advantage of in mediation. If you were to ever feel that was happening, you have the right to immediately withdraw from the process and pursue traditional recourses. If you still wanted to remain in mediation, either or both parties can retain independent counsel and continue to work with the mediator. This can be useful when the relationship dynamics include intimidation, a lack of assertiveness or if a power imbalance exists between the parties.
If either party thought the other was being dishonest during the mediation process, the mediator can request that the parties engage in fact-finding methods and they may also utilize neutral or independent experts to review the information gathered. If the other party refuses to cooperate, you can always pursue traditional litigation, but the information and communications exchanged during the mediation process are confidential unless the parties agree otherwise in writing.
What is Court-Appointed Mediation?
Mediators can either be appointed by the judge in the case, or agreed to by the parties. Many couples who have filed for a divorce in Illinois are required by a judge to try and work out any child custody issues or conflicts over property division through mediation. In some cases, couples may actually prefer going through the mediation process, since it offers more privacy and confidentiality to quietly settle family disputes outside of a public courtroom, based on mutual agreements devised between the two parties.
Margaret Bennett is a Family Court Mediator with the DuPage County court system.
With the help of an experienced family law attorney, who is specially trained in the art of mediation and who can act as a neutral third party, spouses may have a better chance at peacefully resolving their disputes, without the high costs of litigation. In some cases, the judge may feel mediation would be inappropriate because an aspect of the case would obstruct the mediation process.
A judge would be unlikely to order mediation in cases where there is:
- Domestic violence;
- Mental illness;
- Drug or alcohol use;
- Physical impairment; or
- Fraud, duress or undue influence.
During the process, the mediator screens for things that may obstruct the mediation process, and reports back to the judge
Mediation In One Visit
Single Session divorce mediation is mediation that starts and ends in one office visit. It is an informative service that we provide to divorcing parties that:
- Are curious about mediation, but are leery of committing to something they don’t understand
- Believe they have worked things out by themselves, but want to be sure they didn’t overlook something
- Have already settled their case, but wish to verify that their ideas are in line with what the judge requires
- Have worked out most items, but need guidance or help with one or two remaining issues
Can Post Decree Matters be Mediated?
Margaret Bennett can mediate a post decree dispute if you or your ex-spouse has filed a post decree petition with the Court, or if you are considering filing a post decree action pro-se. For mediation to work with an ex-spouse, he or she needs to be willing to go to mediation. Both parties need to discuss the matter with each other and agree to attending mediation with Margaret Bennett before mediation can be scheduled. An ex-spouse oftentimes will not agree to mediation if he or she is not the moving party, but may have to be ordered to attend mediation by a judge before he or she will attend. Unfortunately, this may mean petitioning the Court to enter an Order for Mediation in order to enforce any provision for mediation that may be part of a divorce decree.
Have questions about mediation?
Contact our firm to inquire about mediation with Margaret Bennett and for further information on the mediation process.