When they first hear about it, most divorcing couples believe mediation will be a waste of time. They reason that if they can successfully talk out their problems, they wouldn’t have to go to court. This mentality makes sense; however, mediation is about 90 percent effective.
One reason divorce mediation often works is both parties have a legal responsibility to negotiate in good faith. They must earnestly want to resolve their dispute(s). They cannot simply go through the motions. Also, each side must be willing to compromise. The mentality of “It’s my way or the highway” is not negotiating in good faith.
The emotional and financial issues in a divorce usually invite compromise. For example, it’s relatively common to settle money disputes by putting all your cards on the table and meeting in the middle. The big problem here is that divorcing couples understandably get emotional about financial disputes. That’s where a mediator comes in handy.
A Naperville divorce mediation attorney comes in handy before, during and after mediation. Attorneys match issues in a case with an effective mediator. Not all divorce mediators are adept at all kinds of cases. During mediation, attorneys stand up for legal and financial rights. After mediation, a Naperville divorce mediation attorney ensures the agreement submitted to the court is the same one the parties reached.
Setting the Stage: The Three C’s of Mediation
Mediated settlements are usually, but not always, the best way to resolve a family law matter in Cook County. The benefits of mediation are impossible to ignore.
Financial cost is a big concern in most divorce cases. Typically, the party’s original budget for legal fees goes out the window quickly. Most attorneys charge by the hour, meaning the longer the case lasts, the higher the legal bill climbs.
According to the Department of Justice, in 2016, mediation helped civil litigants save a staggering $70 million in legal fees. In many cases, divorce mediation happens following discovery. So, if mediation works, the case could end several months earlier than it would otherwise. Also, it’s much less time-consuming to prepare for a mediation that lasts several hours – instead of a trial that could last several days or weeks.
Divorce proceedings have an emotional price tag as well. Litigants must forgo activities they enjoy, like spending time with friends and family, and instead do divorce homework. Even when they aren’t doing homework, divorce stress could be overwhelming. Mediation reduces these costs as well, partially because it ends the case earlier.
Divorce trials in Illinois are usually non-jury trials. Therefore, a judge who knows little or nothing about your family basically dictates orders. That’s a tough pill for many people to swallow, especially if they have problems accepting authority.
On the other hand, divorce mediation gives the parties almost total control over the outcome. Judges almost always approve mediation agreements if they meet certain legal requirements. These mediated settlements often include outside-the-box thinking, which tailored to your family’s needs. Judges almost never make such orders from the bench.
This control has some benefits later. If people feel they have a voice in the process, they are more likely to voluntarily comply with the orders. That could mean fewer motions to enforce the orders.
Other than cost, civility might be the biggest advantage of mediation, especially in the co-parenting era.
In days past, spouses largely went their separate ways following a divorce – even if they had young children. Now, that’s no longer the case. The law does not expect divorced spouses to be friends, but it does expect divorced spouses to work together in certain areas and be civil toward one another.
Divorce mediation increases post-divorce civility. A divorce trial is usually an emotional showdown. As outlined below, mediation is a process that encourages litigants to look at all the pros and cons. The children reap the benefits of this improved civility.
On a related note, divorce mediation improves the prospects for future dispute resolution. Disagreements inevitably arise. If the ex-spouses talked through their problems once, they often feel like they can do the same thing again.
Mediation Eligible Matters
Divorce mediation isn’t just for divorce. With the help of a Naperville divorce mediation attorney, as outlined above, mediation can also help resolve some other family law disputes, such as:
If nothing else, mediation can usually narrow the issues for trial in these situations, so the trial is less expensive from a financial and emotional standpoint.
Some Mediation Nuts and Bolts
At the outset, we discussed some aspects of mediation that usually make it successful. The physical setup of mediation also contributes to the high success rate.
Mediation almost never happens in a courtroom. Frequently, mediation occurs in an office suite and in a rather informal setting. There is no judge and no court reporter. In fact, mediation is private. The only people who know the time, date, and place are the participants and anyone they wish to inform.
To prepare for the mediation, the third-party mediator usually reviews the paperwork in the case file. A careful review informs the mediator of the issues in the divorce. For example, if the spouses disagree about parenting time, there will be a lot of court documents in the file on this subject.
Incidentally, most parents agree on broad concepts, like the orders should be in the best interests of the children. But they normally disagree on the specifics. A highly trained mediator can usually translate that broad agreement into specific agreements.
When mediation starts, everyone is usually in the same room. The mediator then listens to brief opening statements from each side. That’s pretty much the only part of mediation that looks anything like a trial.
After the opening statements, the parties retire to separate rooms. Then, the mediator conveys settlement offers and counteroffers back and forth. The mediator is more than a messenger. The mediator also delivers some commentary, which encourages the parties to compromise. As mentioned, they have a legal duty to do so.
This process usually continues either all day or for a half-day. At the end of the session, the mediator files a report with the court indicating whether the case has been settled. If the parties reach an agreement, the judge must approve it, as mentioned above.
Sometimes, there are some special security issues in mediation. For example, if there are verified allegations of domestic violence, a wife might not feel comfortable in the same room with the husband. In these situations, a Naperville divorce mediation attorney can make appropriate arrangements. A Zoom mediation might be a good idea in these situations. That’s especially true if one spouse uses a Virtual Private Network, so it’s almost impossible to trace the computer’s signal.
Because of the benefits of mediation and the high success rate, divorce mediation is almost always worth a try, even if the possibility of success seems remote. But that’s not always the case, and there are some alternatives available.
Financially, sometimes the two sides are so far apart that compromise is impossible. If both husband and wife want the house, splitting it down the middle ala I Love Lucy usually is not an option. Emotionally, sometimes a spouse wants or needs a judge to declare the marriage is over.
Illinois is now a pure no-fault state. Therefore, the marriage dissolution itself usually is not an issue in a divorce trial. But everything else is at stake. Attorneys usually spend weeks or months gathering evidence, such as financial records and child psychologist evaluations, which support their claims and refute the other side’s claims.
Technically, mediation is a trial alternative. Mediation happens in the litigation context. Collaborative law, a non-litigation alternative, might be an attractive option in some cases.
Procedurally, the entire process happens outside a courtroom and with no judicial supervision. Typically, the parties meet once a month to discuss issues like property and parenting time division. If a need arises for a real estate agent, psychiatrist, or other experts, the parties divide the cost.
When they reach an agreement on one issue, they move on to the next one. Most collaborative law divorces last about six (6) or eight (8) months.
Notice we said “when they reach” and not “if they reach” an agreement. Both sides fully commit, in writing, to resolving all their disputes using the collaborative law model. That’s a big step beyond the previously duty to negotiate in good faith.
To ensure full commitment, if the process breaks down for any reason, the sides must completely start over with new legal counsel.
Connect with a Hard-Working Naperville, IL Attorney
Mediation doesn’t always work, but it’s usually worth a try. For a free consultation with an experienced Naperville divorce mediation attorney, contact Keller Legal Services. After-hours and virtual appointments are available.