Many people working to settle their issues have realized the significance of resolving outside the courts. Going through the courts Many people working to settle their issues have realized the significance of resolving outside the courts. Going through the courts can be very expensive and rack up thousands of dollars in fees. When progressing through a divorce, establishing parenting time, or determining child support, the courts or your attorney may suggest mediation as an alternative to litigation. Additionally, in some states, like Illinois, mediation is a required step for cases involving children.
What is Mediation?
A mediator helps litigants settle issues outside of a court having a trial. Mediators are impartial and trained professionals who work with individuals to resolve legal matters. These people do not ultimately make the settlements or render legal rulings. Rather, they encourage the parties to determine the outcome themselves. They accomplish this by airing out grievances, identifying strengths and weaknesses and accepting a fair compromise that is within range of what the Court may otherwise decide at a trial. A mediator’s goal is to lead both parties to agree upon a resolution they can live with and apply.
Mediation may take one or several appointments to resolve the disputes each party may have. It is also confidential. This means the other party cannot use anything you say against you at a hearing if the process does not work. Confidentiality is often crucial for parties to feel comfortable enough to negotiate. In addition, they can do so without fear that concessions will later be used as evidence or admissions if the case proceeds to trial. Thus, parties may come to a more amicable agreement that best suits their schedules and finances when utilizing a mediator.
In addition to confidentiality, a major element of mediation is that it is not binding. Each party still has an opportunity to speak to their attorneys about an agreement before committing to make it permanent. There are pros and cons to this, however, as explained below.
What are the Benefits?
Mediation typically works best when the mediator ensures the parties communicate and speak honestly, being open with one another about things they want to see happen with the divorce and/or goals for life after the divorce. While benefits may vary by case, the most common are:
- It is often more affordable than litigation.
- Parties tend to solve problems more quickly.
- Mediation can last as long, or as quickly, as needed to find an agreed upon solution.
- Working together typically promotes respect between people.
- Since mediation is non-binding, both parties have an opportunity to obtain legal counsel prior to any mediation agreement being entered or presented to the Court. Thus, neither party is unfairly pressured to accept a deal on the spot.
Cons of Mediation
Some downfalls of mediation could be time and money wasted if a compromise cannot happen. In addition:
- It is not suitable for all cases, such as those pertaining to domestic abuse. In these, the mediator will often refuse to mediate the case, citing an impediment to mediation.
- It is difficult to tell whether someone is being honest and open.
- If one or both sides is aggressive, mediation may not work.
- Because mediation is non-binding, sometimes parties will pretend to agree just to satisfy a Court Order to participate, but then revoke that agreement once mediation is completed.
How Can it Be Used in Divorce Cases?
In Illinois, the most common use of mediation in family cases is for those involving children and disputes regarding parenting plans. The circuit courts regard it so highly that the Supreme Court made mediation programs mandatory in allocating parental responsibilities and parenting time in Illinois, with parties required to do a minimum of 4 hours of mediation prior to seeking relief from the Court as to those issues.
One exception to the requirement, however, is if the parties, or the Mediator, feels there is an obstacle to mediation, such as domestic abuse., In those situations, they can petition the court to excuse themselves from the requirement, or the Mediator can submit a report recommending a waiver of mediation
A mediator can help make decisions in areas such as:
- Parenting time (formerly “visitation”)
- Decision-making power (formerly “custody”)
- Child support
Using mediation in parental disputes and divorce cases can be an effective solution to resolve issues. While undergoing mediation, the parties can determine the outcomes without letting a judge decide.
Kristen Strieker is a licensed mediator and believes that with the proper guidance, your family law case can be less stressful for all involved. Contact our office at Strieker Law Firm to learn more.