Mediation – Is it for you?
Mediation in Cook County
If you are involved in a divorce case or parentage case, you may hear about mediation. In an effort to promote settling cases on the parties’ own terms rather than litigating the terms before a judge, there are established rules that require mediation in contested pretrial matters involving custody and visitation, or in contested post-trial matters to modify a joint custody judgment. In Cook County, mediation is governed by Rule 13.4(e) of the Rules of the Circuit Court of Cook County. Parties are required to attend mediation in cases involving disputes over custody and visitation, unless there exists a valid reason to be excused from mediation, however, parties are not required to reach an agreement. Mediation of financial matters is available, but is not required unless the Court orders it. Financial matters include disputes over debts, assets and money. Neighboring counties have similar rules, but for the sake of brevity, this post is only in the context of Cook County rules.
There have been a significant amount of changes recently in Family Law and Mediation in Illinois. The Illinois Marriage and Dissolution of Marriage Act has been overhauled and will go into effect on January 1, 2016, which introduces many changes to how the courts will view custody and visitation issues.
Where do I go for mediation?
Previously known as Marriage and Family Counseling Services, now “Family Mediation Services” (FMS), FMS is a department of the Office of the Chief Judge, Circuit Court of Cook County, Domestic Relations Division. “FMS provides mediation for parents who are separating, separated, divorcing or divorced, who were never married, and are in conflict over custody and visitation issues involving their children.” If the judge orders you to mediation in a pretrial matter involving custody and visitation, FMS is the where you will attend mediation. Mediation can also be completed through private mediators, if that is who the parties elect to utilize for their mediation. Joint Custody Judgments often contain a paragraph where the parties should attend mediation. This could be a mediator with Center for Conflict Resolution or it could name a specific mediator. Which mediator you use is important and you should speak with your attorney to decide which mediator is appropriate for your case.
What is a mediator? Do I need an attorney?
Mediation is a non-binding confidential process by which a neutral third party assists the parties in reaching a mutually acceptable agreement. A mediator is not an attorney for both parties but a mediator may be an attorney. A mediator does not have to be an attorney. It is highly preferred by mediators that the parties are represented by attorneys prior to attending mediation. Why? Your attorney can help you understand the law and what you are entitled to before you make any agreements. Your attorney can help you understand the best possible result that you could obtain in litigation, the worst possible result that you could obtain in litigation, and the most likely result that you could obtain in litigation. Once you are fully informed, you can be more successful in mediation. Your attorney can help you know what you don’t know.
Does my attorney participate in the mediation?
Sometimes attorneys attend mediation with their clients. These attorneys are not attending mediation to zealously advocate for their client during mediation but to support their clients as they go through the process. Some attorneys prepare their clients ahead of time and are available by phone, if needed, but don’t attend the actual mediation. If the parties reach an agreement, the attorneys can then draft the settlement and court documents.
Will mediation save me money?
Rule 13.4 explains that one of the purposes of mediation is to be “cost-saving.” Does mediation save money? Well, that depends… What does it depend on? If it works! If you use private mediators and don’t reach an agreement, you have not saved any money. If you have very few assets and use a mediator for multiple sessions, you may not save any money if two competent attorneys can wrap it up in a few emails exchanging draft agreements. But mediation can save $$$ in many cases. It’s always a good idea to talk with your attorney about whether your case is appropriate for mediation. Sometimes, it is a matter of good timing whether mediation is successful and cost-saving. This is also something to talk about with your attorney.
Why should I use mediation rather than litigation?
So I just said that cost-savings are not a guarantee. You have an attorney that can negotiate a settlement or litigate at trial. You are probably wondering why you should go to mediation. The reason is that, overwhelmingly, the parties that reach a settlement in mediation are happier with their settlement than if they went to trial, because it was their agreement not something that the judge imposed on them. Let’s be real: there is no winning in divorce or custody battles. You can’t actually “split the baby” and have two whole babies.
What mediation can give you is your voice. The family law court systems are clogged. If you think that going to court is going to give you your voice, you may want to go observe how the courtrooms actually operate. The judge is trying to get through their “court call” as efficiently as possible and that doesn’t leave a lot of time for your to air your grievances. Court cases don’t wrap up in a few short days like they do on TV dramas.
But if you prepare for mediation with your attorney, if the timing is right for you and your Ex to mediate a settlement, and if you go into mediation ready to compromise and get the best possible settlement for both you and your Ex, you could walk out more satisfied with the results.
Is mediation right for you?
That is a question that you should consider with your lawyer. We offer free initial consultations. Call or make an appointment on our website to get started: http://www.familylawchicago.com/make-an-appointment/