Mediation in Custody Cases

 Study-group

Mediation is a process where two parties meet with a mediator to try and resolve all outstanding issues by compromising and coming up with a collaborative solution.  They may have attorneys retained, but attorneys are not present for mediation.

In divorces that involve minor children in the State of Illinois, it is a requirement that the parties participate in mediation to try and resolve custody, visitation and other parenting issues before the Court will hear any motions regarding same.  The only exception to this is in an emergency situation, or, if there is an impediment to the parties mediating.  (Domestic violence, an order of protection in place or some other court improved impediment).  Most parties that have minor children that are going through a divorce have to engage in mediation.

Financial issues generally are not mediated in a divorce, unless the parties obtain a private mediator to try and help with same.  Some mediators will mediate financial issues, others will not.  It is important that if you select a mediator to mediate your financial issues that you select someone with experience in family law in Illinois, either as a former Judge, or as an attorney.  Otherwise, when parties engage in mediation with a person that is not familiar with the parties’ entitlements under Illinois law in a divorce, the mediation can become futile.  Mediation is only the parties and a mediator.  If the parties have counsel representing them, they are not present.  Additionally, the mediation can occur over a few sessions.  Thus, the parties have the opportunity to go ahead and consult with their lawyers in between mediation sessions.  If the parties come up with an agreement that is completely contrary to what they would be entitled to under Illinois law, their attorneys will tell them that, and the parties may not agree to what they initially mediated at that last session, as it is non-binding.

Additionally, Cook County, Illinois has just passed a new mediation rule that will allow for mediation of financial issues.

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