Mediation is an alternative to litigation where the parties meet with an impartial and neutral person to assist them in reaching an agreement to resolve their legal issues. Mediation can be voluntary or court-ordered.
Who is the mediator?
The mediator is a third-party who has been trained to help facilitate conversations between the parties. In Illinois, you do not have to be an attorney to be a mediator, however we suggest looking for a mediator who is an attorney, such as those at Burgos Santoyo and Smith, or former judge and who is familiar with the legal process.
Private Mediation v. Court-Ordered Mediation
Private mediation occurs when the parties voluntarily engage in the process. Parties pick their own mediator. Typically, parties will split the cost of private mediation unless they agree otherwise. A mediator cannot prepare or file the paperwork for a divorce, but they can help resolve the issues that would be determined in a divorce.
Private mediation is a great alternative when the parties can work together. Private mediation is likely not a good fit in situations where the relationship is toxic, abusive or there is a power imbalance.
Court-ordered mediation in divorce/parenting cases occurs when the judge orders the parties to attend mediation. In Illinois, this occurs in matters where the parties can’t come to an agreement on parenting time or decision-making responsibilities for their children. Parties will be ordered to attend four hours of mediation (to be split up as the mediator/parties deem appropriate), but the parties can agree to go for longer if they feel they are making progress. The parties, or their attorney’s, may have a say in who is appointed mediator, or the Judge may decide for the parties. The court may order the parties to split the cost equally or, if one party makes significantly more, may order one party to pay for the majority or all of the cost. If parties are indigent, the Court may waive the cost or there may be a grant to cover the cost of the same.
A Judge may waive mediation if there is an Order of Protection in place, but the Judge has the right to order mediation even if parties do not think it will be successful.
Who attends mediation?
Mediation is between the mediator and the parties. Witnesses do not attend mediation. Attorneys can attend upon agreement of the mediator and the parties, but typically they are not present.
What is discussed in mediation?
Private mediation can discuss anything the parties want to negotiate, including:
- Property
- Debts
- Maintenance (spousal support)
- Parenting Time
- Decision-Making Responsibilities
- Child Support
- Court-Ordered Mediation for Parenting Issues:
- Parenting Time
- Decision-Making Responsibilities
Do we have to come to an agreement?
No! Whether private mediation or court-ordered, the parties are not required to reach an agreement.
Can we come to a partial agreement?
Of course! Narrowing down the issues is still helpful in the long run and gives ind the parties less to litigate.
Will the Court hear what we talked about?
No! Mediations are confidential and the contents of mediation cannot be used in litigation.
Is an agreement reached in mediation enforceable?
An agreement reached in mediation is only enforceable once it is entered into an order by the court. A party has a right to change their mind before an agreement is made official by a court order.
The Pros of Mediation
Faster – Litigation is a time-intensive process. Mediation allows for the parties to come together to try to reach an agreement that makes sense for them. If parties are able to reach an agreement, mediation is a faster alternative than the standard legal process.
Cheaper – Mediation is cheaper than the litigation process as it cuts down on court appearances, filings and attorney fees.
A say in the outcome – Unlike a trial, mediation allows for the parties to have a say in the outcome. At a trial, the ultimate decision is in a stranger’s hands.
Cooperation – Litigation puts parties at odds with each other. Mediation allows for parties to work together to find a solution that makes sense for them.
The Cons of Mediation
No Guarantees – Neither party can force the other to settle. There is no guarantee that mediation will result in an agreement of all issues.
Unknown Assets – If parties are mediating financial assets and debts, the parties are relying on good faith that everything has been disclosed. There could be assets undisclosed that could result in a party accepting an agreement that is not in their best interests.
Buyer’s Remorse – There are times when a party is so desperate to have everything done, that they agree to something they later regret. That is why it is important that each party go into mediation knowing their rights.
How do I prepare for mediation?
Speak to an attorney and know your rights. Review the topics you wish to discuss and have an idea of what you would like the outcome to be. Remember, mediation is about compromise, not about victory. Get a good night’s sleep so that you can be emotionally prepared and open to hard conversations.
If you have any questions about your rights or the mediation process in general, please schedule a consultation with us today!