Mediation in an Illinois Divorce Case

In this article we explain what is mediation and how it can be used in an Illinois divorce case including:

• What is mediation?
• What issues can mediation help to resolve in an Illinois divorce case?
• What is the mediator’s role in the mediation process in Illinois?
• What are the four types of mediation in Illinois?
• What are the benefits of mediation in Illinois?
• Are there any negatives to mediation in Illinois?
• Is mediation right for everyone?
• If we go to mediation in Illinois, can I also have an attorney to protect my rights?

For a couple going through a divorce, it can be a daunting process. The parties may want to go through the process amicably, but they might not know what issues need to be resolved or how to begin. This is where the process of mediation can help. Mediation can help couples who are willing to enter into an agreement to resolve their divorce who want a quicker and less costly process than litigation where they retain control over the process and outcome of the divorce.

What is mediation?

Mediation is a process where a trained neutral third party assists the parties in reaching an agreement about their legal issue. The mediator is not acting as an attorney to either party. The mediator is simply an intermediary and in some cases a drafter of the legal documents.

What issues can mediation help to resolve in an Illinois divorce case?

The mediation process is most often used to assist parents in reaching agreements related to the children. The mediator can facilitate a process to assist parties in reaching an agreement about parenting time including day to day parenting time, holidays, and school breaks, decision-making relating to medical, educational, extracurricular activities, and religion, travel, and other day to day logistics. Mediation can also assist the parties in coming to an agreement on financial issues. Financial issues include child support, maintenance, division of assets, division of debts, insurance, and taxes. (For more information on division of assets and debts, see article on division of assets/ division of debts in an Illinois divorce- article to come).

What is the mediator’s role in the mediation process in Illinois?

It’s important to understand what the role of a mediator is and what the role of a mediator is not. Although most divorce mediators are attorneys who have training in mediation and domestic relations, the mediator is not an attorney for either party and therefore will not be providing legal advice to either party. The mediator’s job is to help the parties reach an agreement. The mediator will not advocate on behalf of either party.

What are the four types of mediation in Illinois?

Mediation can either be court ordered mediation or voluntary mediation. Often times with court ordered mediation, you do not get a choice of mediator or type of mediation. If mediation is being participated in voluntarily, the parties can select their mediator keeping in mind the type of mediation the mediator is likely to use. There are generally four different forms of mediation which include facilitative mediation, evaluative mediation, shuttle mediation, and transformative mediation.

Facilitative Mediation

In facilitative mediation, the mediator assists the parties in finding options for resolution. The mediator does not make recommendations, does not provide advice, does not provide an opinion as to the outcome of a case, and does not predict what a court would do in a particular case. The mediator validates and normalizes each parties’ point of view, seeks to understand the interests of the parties rather than positions of the parties, and given the parties’ joint interests helps them to reach a resolution. Here is an example to illustrate the difference between an interest and a position: I want to have an active role in my child’s day to day activities including being able to help with homework during the week (interest) versus I want sole custody (position). The mediator’s primary role is to facilitate the process hence the term “facilitative” mediation.

Evaluative Mediation

In evaluative mediation, the mediator helps the parties reach a resolution by pointing out strengths and weaknesses of each party’s case and providing a prediction on what a judge would be likely to do. While the mediator does not represent either party, the mediator may provide specific recommendations to the parties. The mediator “evaluates” the case of each party, which is how the process has been termed “evaluative” mediation.

Shuttle Mediation

In shuttle mediation, the parties are typically in separate rooms and the mediator takes the proposals back and forth to the parties. This type of mediation works best for individuals who are unable or unwilling to be in the same room as their ex-partner including cases of domestic violence. The mediator “shuttles” between the rooms acting as messenger and buffer, which is how this type of mediation became known as “shuttle” mediation.

Transformative Mediation

In transformative mediation, the mediator focuses on the values of empowerment and encourages the parties to provide recognition to the other of their needs, interests, values, and points of view. This model is called “transformative” mediation because it is the hope that through the mediation process the parties’ relationship will be transformed to one of understanding and respect.

What are the benefits of mediation in Illinois?

The primary benefit of mediation is that the process is typically quicker and cheaper than litigation. Mediation also allows the parties control over the outcome of their divorce. Mediation often results in a less contentious process than litigation resulting in a more respectful process, which is especially important in cases where children are involved because the parties will need to continue to work together for years to come. A less frequently considered advantage of mediation over litigation is the privacy it affords. While a final court order will become public record, the mediation negotiations are private. Your “dirty laundry” so to speak can be kept out

of the public eye. Another advantage is often times parties feel like their side of the story is being heard and their concerns are being addressed with the mediation process, which may be lacking in the litigation process. The parties retain complete control over the decision-making process. If the parties don’t agree, an order won’t be entered. In the litigation process, often times a judge who doesn’t intimately know the parties or the family is the one who decides the outcome of the case.

Are there any negatives to mediation in Illinois?

The primary negative to engaging in the mediation process is that there is no guarantee that mediation will work. If the parties are unable to reach a resolution, the litigation process will need to be utilized anyway and there will be few results to show for the time, energy, effort, and money that was put into the mediation process. For the mediation process to be successful, the parties must be able to work together. If one or both of the parties are completely unable or unwilling to cooperate or compromise, mediation will not be a viable option. Additionally, if the parties’ dispute hinges on a specific question of law, mediation might not be the best option. Finally, mediation might not be as cost effective as the parties had hoped. Not all mediators are created equally; you want to make sure you have an experienced mediator who will help the parties reach a comprehensive agreement efficiently.

Is mediation right for everyone?

Mediation is best suited for couples who are able to voice their concerns and who are willing to enter into a binding agreement. Mediation works best where “power” is relatively well-balanced between the parties and the parties are generally able to communicate with respect and civility.

Mediation may not be appropriate for cases with domestic violence and may not be appropriate for cases where one spouse believes the other spouse is hiding assets. Although mediation can be set up utilizing safety precautions, couples with a history of domestic violence need to carefully consider whether mediation is right for them. The abused partner may feel pressured to agree to any terms the abuser presents and the abuser may purposely refuse to agree to any terms as a way of prolonging the process. Mediation is not well suited for individuals who do not feel comfortable saying “no” to their ex-partner even if they are not in agreement.

Additionally, if one party believes the other party is hiding assets, mediation might not the best choice for the parties. It may be necessary to go through with the discovery process to find out whether or not assets are being hidden. (See article on discovery process in an Illinois divorce to be written).

Finally, mediation might not be a good choice for high conflict couples. If the parties are openly hostile or aggressive towards one another, the couple might not be able to reach an agreement and the process may be futile. A lot of time, energy, and money can be poured into mediation with little or no results, which is an outcome to be avoided.

If we go to mediation in Illinois, can I also have an attorney to protect my rights?

Generally speaking, an attorney will not be present for the mediation sessions. However, it is recommended that you hire an attorney prior to a mediated agreement being entered into a court order. An attorney will be able to advise you as to your legal rights and responsibilities. It’s also

usually helpful to meet with an attorney prior to beginning mediation so you understand your rights before entering into an agreement with your spouse.

If you think mediation is right for you, read our article on how to prepare for mediation (to be prepared).