I Lose Money Every Time I Send A Case To Mediation. Here’s Why I Keep Doing It.
My office does not offer mediation. While I often help clients negotiate their cases from start to finish, I frequently encourage many clients to attend mediation. Simply put, this is work that I otherwise would have performed, being sent out of the office. It makes no sense from a business perspective, yet I keep doing it.
What Is Mediation?
Mediation is a process where two or more parties in dispute sit down with a trained mediator and attempt to reach an agreement resolving all or part of their issues.
Divorce mediation would entail resolving all or most of the outstanding issues in the parties’ case. That would include issues like parental allocation (a.k.a. custody), child support, maintenance (a.k.a. spousal support), property division, and parenting time. It’s a lot to tackle and many people feel overwhelmed at the outset. After all, the odds are that you are not a divorce attorney, haven’t studied family law, and feel uncomfortable with the divorce process. Why mediate? I’m glad you asked.
Let’s say that you and your spouse have an uncontested divorce. The two of you agree on most issues and neither of you wants to spend the time and money to duke it out in the family law courts. You agree on everything except maybe one or two issues. What can you do to finalize your agreement without jeopardizing what you already have in place?
Mediation Is Cheaper Than Litigation. Successful mediation will save both you and your partner a great deal of money. While sometimes necessary, litigation can be costly and draining (trust me, I litigate often). Instead of litigating in court, you and your spouse will only incur mediation fees during the negotiation. You will likely incur lawyer fees as you contact your family law attorney for advice throughout the process, but those will be far less than what you would otherwise be charged.
Mediation Gives You A Greater Degree Of Flexibility. Judges apply the law. It seems obvious, right? That also means that a judge is somewhat limited in what he or she can order the parties to do. If your case has special considerations, perhaps involving the care of an emancipated child, a small business, complex investments, or any square peg, the domestic relations courts may not be the best venue for your case. You and your spouse would be best served by sitting down with a mediator and reaching an agreement that addresses the complexity and nuances of your case. Your mediated agreement will almost certainly be more creative and personalized than any decision handed down by your assigned judge.
Mediation Reduces Conflict. This one seems obvious, right? Its value should not be underestimated. Instead of battling in court, filing motions and calling your spouse to testify, you could be sitting down in a (hopefully) nice conference room, calmly addressing the issues in your case. If you have children that you will need to co-parent after your divorce, mediation will help you preserve whatever relationship you have with your spouse or partner while still addressing your issues.
No Public Record. Mediation, unlike litigation, is private. The negotiations stay confidential. What is said in mediation cannot be introduced in court as evidence. Further, any documents relied upon do not enter the public record. The only thing that is filed with the court is whatever order or judgment is needed to settle your case. That means that mediation provides you with a greater degree of privacy that you could get in divorce or parentage court.
Your Mediated Agreement
Once your mediation is completed, your mediator will provide both you and your partner with a memorandum of understanding, which is a non-binding summary of your agreement. Thereafter, either you and/or your spouse will use your family law attorney to formalize the memorandum of understanding and prepare whatever documents will be required to conclude your case.
Even though mediated agreements are non-binding, they almost always hold. The first reason is that your attorney should act expeditiously to have your final order entered in court. Agreements get stale and no attorney should let that happen. The second and most important reason is that the parties personally negotiated for the settlement. They chose the terms and worked hard to agree on them. Typically, mediated agreements are accompanied by a greater degree of commitment than is otherwise achieved by court order.
When Should I Mediate?
While a couple may opt to go to mediation from start to finish in their divorce, mediation can actually happen at any time throughout the divorce process. If you have children, Cook County requires that all couples attend mediation in an attempt to formulate, modify, and implement parenting plans. Mediation can also occur post divorce in many instances, such as where the parties have disagreements over provisions in their Judgment for Dissolution of Marriage. Many judgments, particularly ones concerning kids, include a mandatory mediation provision.
The Attorney’s Role
Although mediation is great, an attorney is still essential. Mediators cannot give legal advice nor can they represent you or your spouse in court. Further, mediation is a non-binding process and there are times (unfortunately) when a mediated agreement breaks down. Having retained an attorney gives you alternatives in those instances.
Attorneys can also provide great resources during the mediation process. Here at Stern Perkoski Mendez, we have our own list of great mediators that we work with often. In doing so, we are able to ensure that your divorce process is a complete, accurate, and uncontested process. For more information, please feel free to contact us to see how we can help with your case.
This post was written by Emmaline Rees, Northwestern Class of 2017, and Joshua E. Stern.