MEDi 10.06

Mediation can be an efficient way to settle your divorce case, if it’s right for you. A mediator is an unbiased third party who meets with you and your spouse to reach an agreement on the various aspects of divorce. The job of the mediator is to suggest solutions and help bring the two sides closer to agreement.

If you and your soon-to-be ex can barely even speak without arguing, you might think mediation isn’t an option for you. It could be worth a try anyway. Mediation is confidential and non-binding. It cannot be brought up in court if the mediation fails and you end up bringing your case before a judge instead. If you try and it doesn’t work, then you can still go to court and have the judge hear your case. If mediation does work, and you reach an agreement, that agreement is then submitted to the judge before it becomes final.

In Illinois, mediation is not required for every divorce, although the judge can always make it a requirement in your case. Mediation is required, however, in cases (including divorce cases) that involve child custody or visitation issues that cannot be resolved. In fact, mediation is required whenever child custody is an issue, even if the parents were never married. After a case involving custody or visitation is filed, the court will then order mediation, unless there is good reason mediation is not appropriate. In cases of domestic violence, for example, mediation will likely not be ordered. The same is true in cases where there is substance abuse or mental illness.

You can hire a private mediator, or go through the courts. Some mediators are lawyers with experience in family law cases; others do not have a law license but should have completed a training course. In child custody and visitation cases, the mediator will keep the best interests of the child or children in mind. The same is true for cases involving a request to move a child to another state. In divorce cases, the mediator’s job is to help both sides reach a compromise that they can both agree to. Even if the mediation itself is mandatory, you are not required to come to an agreement. And any agreement you do come to is not binding. When you submit an agreement to the judge and the judge signs it as an official order, then your agreement is binding.

The benefits of mediation in divorce include saving money, time and even stress. Going though litigation and approaching conflict from the extremes typically involves higher legal fees. And the process can take much longer, with delays caused every time there is a disagreement. Not every case can be resolved in mediation, and in those cases, going to court with an attorney and taking an aggressive approach might be necessary to protect your interests. But because mediation is not binding, and arguably gives you more control over the outcome, there’s a good argument for at least trying.

Even if you predict that you will end up in mediation, consult with an experienced Illinois divorce and custody lawyer, too. You’ll still need someone to make sure your interests are protected. Your mediator should not be giving you legal advice. Your attorney will review any agreement you come to in mediation and can suggest changes and help you understand every aspect of the agreement. Don’t wait until after an agreement is reached to talk to a lawyer.

If you have questions about how mediation might work in your case, let us know. There are pros and cons to pretty much everything in life, including mediation. If you think you might find yourself in family court in the near future, learn about your options.