DIVORCE MEDIATION
FAQs
The Answers You Need
WHAT IS MEDIATION?
Mediation is a process that is designed to help people reach the best agreements possible for themselves. A trained, professional mediator assists you in obtaining the information you need and in focusing on the issues that must be resolved in order to separate or divorce as amicably as possible.
HOW LONG WILL MEDIATION TAKE FOR A DIVORCE?
Because each separation and divorce is different, it is hard to predict exactly how long any couple's mediation will last. In general, a couple who must make decisions about both parenting and financial issues may meet with a mediator for four to eight sessions. This varies depending on how complex the issues are and how well the couple is able to work together to make the decisions that need to be made. In addition to meeting with the couple, the mediator will prepare a Memorandum of Understanding, which outlines all of the agreements that have been reached through the mediation process. An attorney can then draft the final legal Agreement that is filed with the court. If a couple does not have minor children, the mediation process will generally be shorter.
HOW LONG IS EACH MEDIATION SESSION?
Generally, mediation sessions are scheduled to last from one and a half to two hours depending on the couple's need and available time. Some couples prefer longer sessions while others find that shorter sessions are more productive. In certain circumstances or locations, half or full day sessions may occur.
HOW OFTEN WILL WE MEET WITH THE MEDIATOR?
At the initial mediation session, you will begin to identify the issues that need to be decided in your particular situation. What these issues are, how urgent the decisions are, how quickly you are able to gather the required information, and how fast you wish to proceed will determine the schedule you set to meet with the mediator. One, two or even more weeks may elapse between sessions. You may meet with the mediator over the course of a month or several months. In situations where couples have no children and no property, a shorter time frame and fewer sessions may be sufficient.
WHAT INFORMATION MUST I DISCLOSE TO MY SPOUSE OR PARTNER AND TO THE MEDIATOR?
All financial information must be disclosed as part of the mediation process. This information is required by the courts and is important for informed decision making. The mediator will work with you to determine your income, expenses, assets, liabilities, retirement funds and other financial information that is required in order to make fully informed decisions. Should information be withheld during the mediation process, any agreement reached may not be valid.
WHAT IS DISCUSSED DURING THE MEDIATION?
In a typical mediation, the following issues must be addressed in order to generate an agreement that may be submitted with the court:
-
Asset and Debts: How these will be apportioned?
-
Property: Marital home, cars, other personal property
-
Spousal Support: Whether there will be spousal support, in what amount and for how long
-
Children: Parenting responsibility and time; living arrangements; legal and physical custody; insurance, education, support and many other issues
-
Insurance and Medical Expenses
-
Tax Issues
-
Pension and Retirement Plans
-
How to resolve Future Differences
CAN OUR MEDIATOR GIVE LEGAL ADVICE?
Mediators are in a unique role that does not involve representing or advocating for either party-in essence, we are neutral to both parties. Mediators can give you information about state laws and local court procedures and can tell you about other resources available, but we do not give legal advice. That is, we do not interpret statutes or advise about or recommend any specific legal action that would benefit either party over the other.
WHAT IF MY SPOUSE IS COMPLETELY IRRATIONAL AND SEEMS UNMOVABLE?
Often, mediation works anyway. Mediators find ways to help the parties move forward, even though they might appear to be at an impasse. For most people, face-to-face meetings are most efficient and effective, but for some clients, separate meetings (caucusing) work better. In such situations, the mediator meets with each party separately, ask questions, and carries relevant information and proposals back and forth between parties.
WHEN IS THE BEST TIME TO START MEDIATION?
As soon as the parties agree to try to resolve their differences outside of court. It is best to try mediation before the litigation process creates too much mistrust between the parties and before the lawyer initiate expensive discovery processes. Mediation early on can save the parties thousands of dollars and minimize long-term distress.
DO WE NEED A LAWYER IF WE MEDIATE?
You do not need a lawyer to get divorced in Illinois. In uncontested divorces, individuals usually use a reviewing attorney who will review the proposed agreement before you sign and then draft the final documents for submission to court. In complex or high net worth cases, there is often a meaningful role for a consulting attorney to help guide you through the legal ramifications as you reach agreements. Ultimately, each party in mediation decides if and when to involve legal representation in the process.
IF ONE OF US IS SKEPTICAL, SHOUL WE TRY MEDIATION ANYWAY?
Yes. You may be able to reach agreement on some of the issues, even if you cannot resolve all of them through facilitated negotiations; in such cases, we can write up a "Partial Agreement." You will still save time and money, and you will still avoid unnecessary stress.
WHAT ARE THE FINANCIAL ADVANTAGES OF MEDIATION OVER LITIGATION?
The most common alternative to mediation is to work with two separate lawyers to handle negotiations either through the collaborative law model (outside of court) or litigation (in court.) This is much more expensive, for the following reasons:
-
The hourly fees of mediators typically are lower than those of lawyers.
2. Lawyers usually charge clients for more hours of work to get something decided
because they get paid for the time they talk to you and for the time they spend
communicating with the other party's lawyer.
3. For a divorce professional's time to accomplish two-hours' worth of work, two family members can either pay two lawyers (total of four hours of work), or, together, they can pay just one mediator (for only two hours of work.)
4. Litigious approaches to divorce also involve a lot of inefficiently used time, including costly procedural actions (e.g. filing declarations and motions, depositions, discovery, countless back-and-forth communications between the lawyers, etc.) whereas mediation is a very straightforward approach. The Agreement that emerges from mediation can easily be incorporated into a court order.
WHAT ARE THE ADVANTAGES OF MEDIATION?
You will make the decisions. You, the individuals involved, are the ones who know your children and family best. You don't have to leave it to a stranger in the courtroom to tell you how your family will work or how you will be raising your children.
Mediation is much less expensive than fighting in court.
Mediation is much less distressing than fighting in court.
Mediation is much faster than working your way through the many complex steps of litigation.
HOW MUCH DOES IT COST?
The billing rate is $275 per hour due at the time of service. A typical session lasts two hours. The drafting of the Memorandum of Understanding generally takes two to four hours (depending on whether or not a parenting plan is required) and is due upon delivery.
IF I ALREADY HAVE AN ATTORNEY, IS IT TOO LATE TO TRY MEDIATION?
No. Mediation is still available. You can keep or hire an attorney to give you advice and then do most of the negotiation work yourself at a much lower cost in mediation. You can even retain an attorney to represent you in court and still do much of the negotiation yourself, with help from a mediator. That can be better than paying two lawyers to negotiate with each other on behalf of the two parties. Many attorneys are happy to have their clients work with mediators to resolve most or all of their issues outside of court.
IS MEDIATION ALWAYS SUCCESSFUL?
While no method of conflict resolution is always successful, the rates of success of mediation are better than those for litigation. This is partly because in mediation both parties "win", whereas in litigation only one party "wins". Success in mediation does require that both parties negotiate in good faith and want to resolve matters. for example, if someone would rather spend $50,000 punishing an ex-spouse than keeping most of that money in the family for the children's benefit, then mediation may not succeed. If the parties have unrealistic expectations and each is convinced that the judge will see everything as the party sees it, they may both need to experience one or two court hearings before they are ready to negotiate in earnest. Such exposure often teaches people that there is no guaranteed fairness or justice in family court. Mediation allows you to maintain control over the process.
WHERE CAN I FIND MORE INFORMATION ON MEDIATION?
You can access the Mediation Council of Illinois at mediationcouncilofillinois.org.