When going through a divorce, the best-case scenario is that you and your spouse are able to come to terms on your own. If you and your spouse can agree on how to divide your assets, split parenting time (or co-parent) if you have children, and resolve the financial aspects of your divorce, this will be the most efficient means of bringing your marriage to a close.
However, if you run into issues along the way – which is not uncommon – you will need to find a way to get past them. One option is to pursue divorce mediation. As discussed in detail below, divorce mediation can still be an efficient and amicable means of resolution, and it can prove to be a highly-effective tool for spouses who are willing to work together with an open mind in order to avoid the costs and contentiousness of divorce litigation.
What is Divorce Mediation?
Divorce mediation is a form of “alternative dispute resolution” that adds a neutral voice to divorcing spouses’ negotiations. In mediation, each spouse is represented by his or her own attorney, and the spouses work with a third-party mediator whose job is to help them find common ground. The mediator will be knowledgeable about the substantive legal issues involved in the divorce process, and he or she will have training in amicable dispute resolution techniques and strategies. Oftentimes, the mediator is a family law attorney or a former family court judge.
What are the Benefits of Divorce Mediation?
The benefits of divorce mediation can best be understood by comparing the process to its alternatives. While informal negotiations give divorcing spouses maximum flexibility, the lack of structure and absence of a neutral third-party can lead to roadblocks for some couples. Mediation addresses both of these issues while still giving spouses complete control over the outcome of their divorce.
On the other side, divorce mediation is significantly less formal and less costly than divorce litigation. Mediation is also a private process, whereas court proceedings are open to public view. When divorcing spouses cannot reach an agreement but prefer to avoid having (and don’t need to have) a judge make decisions for them, mediation can provide a path forward.
Is Divorce Mediation Required in Illinois?
As a general matter, divorce mediation is not required in Illinois. If you and your spouse are able to come to terms on your own, you are free to do so. You can negotiate a divorce settlement agreement with the help of your respective attorneys, and then you can submit your agreement to the court for approval.
However, if you and your spouse are unable to come to terms, then you may be required to try mediation before asking a judge to resolve your differences. In Lake County, Local Court Rule 4-3.19.B.1 provides that:
“Mediation shall be ordered by the Court, except upon a showing of the existence of an impediment to mediation or for other good cause shown, for all disputes involving child allocation of parental responsibility, allocation of parenting time, removal, or other non-economic issues relating to the child or children, either pre-judgment or post-judgment. Mediation shall be limited to the issues specified by the Court in the referral Order.”
Additionally, Local Court Rule 4-3.19.C.1 provides that:
“Mediation may also be ordered for issues other than those described in Section (B)(1), including economic issues. For mediation of these other issues, the Court shall take into account the qualifications and professional background of the individual mediator appointed.”
There are some important differences between these two rules. For example, B.1 only applies to divorcing parents who have children from their marriage. If you do not have children from your marriage, then you don’t have to deal with issues such as parenting time and child support during your divorce.
Additionally, while B.1 states that the court “shall” order mediation, C.1 states that the court “may” order mediation. This means that while mediation is mandatory for resolving child-related issues when divorcing parents are unable to agree, it is in the court’s discretion whether to order mediation for the resolution of property division and alimony. If you and your spouse are not able to fully negotiate the terms of your divorce, you will be able to work with your attorney to decide whether you are comfortable trying mediation or you would prefer to ask the court to allow you to bypass this step.
Can My Spouse and I Still Use Mediation if It Isn’t Required?
Yes, even if a judge does not order you and your spouse to participate in mediation, you can still choose to mediate during your divorce. You and your spouse can use mediation to resolve discrete issues, or you can seek a mediator’s input on all aspects of your divorce. The first approach is more common, as divorcing spouses who are willing to participate in mediation will usually be able to agree on various other aspects of their divorce as well. In many cases, spouses will even use mediation to overcome very specific roadblocks, such as who will keep a particular piece of marital property.
Can We Try to Negotiate the Terms of Our Divorce Before Paying a Mediator?
Yes, absolutely. Many couples are able to resolve the terms of their divorce through informal negotiations, and there is no need to go right to the step of mediation if there is a possibility that you and your spouse will be able to resolve the terms of your divorce on your own. Your attorney can help ensure that your negotiations cover all pertinent issues; and, if necessary, your attorney can advise you as to when it is time to consider mediation.
Schedule a Free Divorce Consultation with a Gurnee, IL Divorce Attorney
If you are considering a divorce and would like more information about the options you have available, we encourage you to contact us for a free consultation. To speak with Gurnee and Lake County, IL divorce attorney Deanna J. Bowen in confidence, call 847-623-4002 or contact us online today.