using private mediation in divorce and family law

Pros and Cons of Private Mediation

After the filing of a Petition for Dissolution of Marriage or the filing of a motion related to parenting issues, most counties in Illinois require that the parties attend mediation. You can elect to choose the court’s mediation system or engage in private mediation.  The court’s mediation system is provided free of charge but may have a long waiting period. Private mediation is faster but costs the parties money to attend.

What Exactly is Mediation?

Mediation is a settlement process that takes place with the assistance of a neutral third-party.  A mediator can be an attorney who oversees the mediation process between two parties and uses his or her expertise in the area of family law to come up with a fair and equitable agreement. 

A mediator does not represent you or the other side.  Both of you will likely contribute to the cost of the mediator, which can be financially beneficial instead of both sides paying their attorneys to negotiate a settlement.  Mediation is a good tool since it allows the parties to discuss the problems together and reach a solution.  Statistics show that settlement agreements achieved by the parties have a better chance of working long term.  When you go into court and have the judge decide, you never know what will happen.  Mediation allows both parties to have a say in their case.  It does not get any better than that.

Who Should You Use for Private Mediation?

When it comes to Illinois family law and divorce cases, there is no rule as to who the mediator can be. If there is a trusted third party that you both know, that is allowable.  Using a mediator that does not know family law though can create problems.  Without knowledge of family law, a mediator could steer you into a settlement that might not be allowed by the court.  For that reason, it is suggested that you pick a mediator that is aware of the family law statutes.

Your lawyer does a lot of mediation in their regular practice.  Insist upon it instead of filing a petition with the court.  Go into the litigation with the thought that you do not need to decimate the other side. Go into the litigation with a sense of fair play and you will be surprised what you can accomplish without going to court.  

How Often is Mediation Successful?

I would estimate that over 95% of cases are mediated at some point during the case and are resolved.  That is very powerful, considering that only 5% of our firm’s case actually goes to trial.  The question is not if mediation will be successful, but when will it be? 

Do you want to mediate in the beginning of the case and resolve it?  Or mediate at the end after paying a lot of money in attorney’s fees?  It stands to reason that the beginning of the case is the best time, but for various reasons, it might take some time before a person is ready for mediation.

EMOTIONALLY, BOTH PARTIES HAVE TO BE AT THE SAME PLACE

When one party has been thinking of a relationship breakup for the past two years and the other party never sees it coming, it is a shock.  The shock of the divorce or break up itself can take people some time to adjust to the reality of their new future.  There are various stages of grief, from denial to anger, to acceptance.  The person seeking divorce or breakup has had time to come to terms with the situation where the other person has not.  In these types of cases, mediation may not occur until both parties are somewhat on the same emotional level.

Considering Private Mediation for Your Case?

For people going into mediation, I often ask my clients to make a list of what they want to discuss.  Write everything down and work off your list.  Some things will be very important, some will just irritate you and others not so important, but it might be important to the other side.  It is important to know what is really important to you, and writing it down can help develop your needs.

I often start the mediation with the softballs.  Work on things that are fairly easy first and both sides feel like progress is being made.  If the entire case is about one parent wanting supervised parenting time for the other, that is a tall order.  That issue is complicated and will take time.  Start with something easier, like what holidays will be assigned to each person.

Should I Seek Private Mediation or Use the Family Court’s Mediator?

There are benefits on both sides. The court’s mediator is not going to cost you anything and that in itself is valuable.  But the court’s mediation program does not discuss the financial issues, just the child-related issues.  Additionally, the court’s mediation can take some time before you get started.

In private mediation, the private mediator is going to cost you money, but at least you will most likely share that with the other party.  If you use a private mediator, make sure that the person concentrates on family law, and not something like labor law.  The benefit of utilizing a mediator that concentrates on family law matters is that that the mediator can better answer questions and control the parties’ expectations as to what a judge would ultimately order.  In addition, a private mediator has more resources and can better accommodate the parties, both in time and accessibility.

For example, the mediator can accelerate the process of mediation by avoiding long waiting times and can accommodate long-distance parties by using Zoom or other technological advantages. 

Are There Any Other Benefits to Using a Private Mediator? 

Yes.  Some people form a long-term bond with their mediator. Being able to work with someone who can assist the parties on any future disputes without having to go through a new mediator who is unfamiliar with the case is a real benefit. If both parties are committed to mediation, you can bypass the court altogether.  It is a win/win since you save a lot of money going to mediation, you resolve your issues more quickly than going into court, and you have a say in the outcome of your case.

If you feel your case could benefit from private mediation or you need advice as to what dispute resolution strategy to pursue given the facts in your case, be sure to talk to an experienced family law attorney to discuss the options in your case.  You will mediate somewhere along the line in your case and the sooner you can do it, the better off you will be.  

 

 

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