Divorce Mediation – What it Is and Isn’t

As more and more people see the inefficiencies – and expense – of fighting over the details of their divorce in court and through their attorneys, mediation is becoming more popular.

People call our office on a regular basis asking about mediation. Sometimes they are in the decision-making phase, trying to get educated about their process options. Other times, they are in the midst of a contentious process and want to explore other ways to get through to the end.

What is mediation?

Mediation is a process where people who have a dispute – two people in a divorce, for example – work with a neutral third party, “the mediator,” to reach agreements. The mediator acts as a facilitator to help the parties communicate, clarify the issues and, hopefully, find resolution.

Often, the people agree on many things – just not everything. There may be one or two sticking points preventing them from reaching full agreement. For example, they may be aligned on how to parent their children but not in agreement on how bills will be paid.

During the negotiation phase, the two people may or may not employ lawyers to help them during mediation. With complex, interwoven issues, a person may want to have an attorney to explain what could happen in court. Significant power imbalance between the parties can justify having their attorneys attend mediation sessions. Most people conduct a cost-benefit analysis when determining which professionals to use at different points in time.

What mediation is not.

Completing mediation is not the same as completing your divorce. Because a mediator must remain neutral, they cannot represent either person in court. This means that one or both spouses will need to hire a lawyer to file the papers and guide them through the court system – even if they have resolved all their issues.

The mediator, at the conclusion of the negotiation phase, prepares a Memorandum of Understanding (MOU), which will be used to prepare the papers that are filed with the court. The lawyer(s) convert the MOU to Agreements, a Marital Settlement Agreement (MSA) to address finances and a Parenting Plan (called an “Allocation Judgment” (AJ) in Illinois). Our office strongly encourages people to employ mediation-friendly lawyers who will honor the agreements that the couple has reached in mediation rather than poke holes in them.

When Trinity Family Law acts as a mediation-friendly attorney, we ask our client to provide the financial documentation that supports the decisions they already made. And, we ask questions to confirm they truly believe the agreement will serve them and their children. We do not challenge our client or encourage them to undo their deal.

Does the mediator tell us what to do?

Our office practices “facilitative mediation.” We want the parties to identify their goals, needs and interests, and generate possible solutions. We facilitate the conversations until there is a plan that satisfies everyone. We may share what we have seen work in other cases but we will not tell you what “the law” is – frankly, because there is rarely a cut and dried answer.

Some professionals, usually retired judges, practice “evaluative mediation.” This means they tell the parties, based on the information presented, what is likely to happen in court – they evaluate the merits in order to help the parties reach settlement.

If we mediate, do we need to hire an attorney?

It may be possible for a couple who negotiates their divorce in mediation to complete the court phase of the process on their own. Representing one’s self in court is called “pro se.” Each county has different procedures, and these procedures vary greatly in terms of complexity. In addition to the MSA and AJ, there are additional documents called “pleadings” that need to be prepared and submitted in order to finalize the divorce in Illinois.

In conclusion…

We are big advocates of getting educated before you begin your divorce. Consulting with an attorney and/or mediator to discuss the facts of your situation and your options can help you choose the path that is right for you.

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