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What Role Do Divorce Lawyers Play In Mediation?

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By Joshua E. Stern

I’m a big believer in mediation for divorce and family law issues. When mediation works, the benefits are readily apparent. Mediation is confidential, non-evidentiary, and has the potential to reduce conflict in a divorce. It helps families transition into new relationships in a safe and collaborative environment.

I don’t mediate. As an attorney, I assist and advise my clients throughout the mediation process. I also somewhat frequently attend mediation sessions where the presence of an advocate is needed. In instances where attorneys are present at a mediation, that process is often referred to as attorney-assisted mediation.

There’s a lot of confusion around attorney-assisted mediation and what role attorneys play in the mediation process. To explain it, I think it would be best to use a fictional couple considering divorce.

Meet Our Fictional Couple

Let’s say that our fictional couple is comprised of Sam and Cindy Smith. Sam and Cindy have one child, Mindy, who is in elementary school. Sam and Cindy own a house, 2 cars, and a dog. Sam works for his family’s business and Cindy is starting to look for work again after suspending her career to raise the parties’ daughter Mindy.

Sam and Cindy decide to divorce. Cindy requested the divorce. Sam saw it coming, but thinks the couple should keep working on their issues and is unhappy about the divorce. Sam has, at various times, threatened to fight Cindy in court or otherwise air their dirty laundry. Cindy wants a low conflict divorce and wants to move through the process as fast as possible. Both Cindy and Sam think Mindy should primarily reside with them and that they should keep the family house. Last, Sam’s income from his family business has dropped since Mindy has requested a divorce, although Sam insists that it’s the result of longterm business problems that have come to a head.

It’s clear out of the gate that there are a lot of issues here. The parties disagree about parenting time, who keeps the family home, and about how much Sam is (or should be) earning. Any one of those issues could bring a case to court for litigation. Given Sam’s threats to Cindy, it’s also fair to assume that direct negotiations between Sam and Cindy are not going well or peacefully. The couple is at a crossroads and need to assess how to get from their point of conflict to resolving their case.

How And When To Mediate

Cindy contacts a lawyer, who explains to her that many counties order couples to mandatory, county-provided mediation whenever there are unresolved child issues. For instance, the Courts in Cook County, Illinois will refer nearly every case involving unresolved parenting time or decision-making issues to mediation before the Court will hear pleadings about child-related issues. Cindy decides that mediation is preferable to court and decides to approach Sam about mediating their entire divorce.

Both Cindy and Sam have incentives to mediate, whether they realize it or not. Cindy and Sam share common concerns, such as providing stability for Mindy and shielding her from the conflict. Likewise, Cindy and Sam share the same marital estate and when they spend money on attorneys, they are spending money they might otherwise have at the end of the case. Last, while both Cindy and Sam are confident in their positions, they recognize that litigation always carries an element of risk. Rather leaving their lives up to the courts and attorneys, they decide to mitigate their risk and keep their dirty laundry out of the public record.

Mediation can be initiated at any stage of the case. Mediation can cover all issues in a case or a very narrow slice. Mediation can, in many instances, replace the litigation process and help the parties reach a resolution of all of their issues.

Mediation requires the cooperation of both parties. Unless it is ordered by the Court, and is thereby compulsory, mediation is voluntary.

What Does The Mediation Process Look Like

The mediation process varies by mediator. There is no standardized approach. That said, here is an example timeline.

  1. Introductory Email/Call. The best place to get mediator recommendations is from your lawyer. He or she will have opinions about who does and does not do good work, who is and is not right for your case, etc. From there, either party or lawyer may contact the mediator. The mediator’s office then schedules the first session and arranges for any individual conversations/meetings between the mediator and the parties.
  2. Identifying Issues and Goals. Regardless of whether a mediator speaks to the parties individually before mediation, many mediations begin with a discussion of shared goals and an identification of where the outstanding issues are. This helps mediators (and the couple) realize they have significant overlap in their aims. It also helps narrow the scope of the issues and permits a more focused discussion.
  3. Children First. Child-related issues are almost always mediated before financial issues. Child issues (decision-making authority, parenting time, etc.) are often the most important to the parties. Illinois likewise prioritizes the protection and stability of children whose parents are divorcing. Courts have an obligation to resolve parenting issues within 18 months of the start of the case, absent extenuating circumstances. Last, child-related financial issues are often dictated by the parenting schedule. As such, it is difficult, if not impossible, to address child support before identifying the parenting time schedule.
  4. Budgets and Marital Balance Sheets. Many mediators will help the parties create a marital balance sheet and, if need be, a budget. A marital balance sheet is a document which details the marital estate (typically the debts and assets acquired during the marriage). The balance sheet will help the parties identify how to effectuate the division of the marital estate and help each party visualize what they are getting. To the extent a party has issues budgeting or is otherwise getting caught up on their financial knowledge, a budget prepared in mediation will help add clarity and ensure everyone is on the same page.
  5. Memorandum of Understanding. Once the parties have concluded mediation, their mediator will prepare a Memorandum of Understanding, detailing the terms of the agreement. The Memorandum of Understanding is then provided to the parties and their attorneys, who will incorporate the terms into the parties’ Judgment for Dissolution of Marriage, Marital Settlement Agreement, and Parental Allocation Judgment.

What Role Do Lawyers Play In Mediation?

Lawyers play a few roles in the divorce/family law mediation process. As counsel, we review all documents and agreements that are produced by the mediator. However, and more importantly, lawyers advise their clients in-between sessions, assist with research and the preparation of documents, and otherwise assist their clients in presenting the most clear and persuasive version of their concerns and needs.

Divorce/family law attorneys frequently attend mediation sessions and assist their clients in the mediations setting. This can be as passive as sitting next to the client, taking notes, and giving feedback during breaks from negotiations. This can be as active as vocally advocating for a client during mediation sessions and will likely include dialogue with the opposing attorney and party.

Attorney-assisted mediation is a good fit for high-conflict cases, legally complex cases, or where one party is having difficulty being heard and considered in mediation. In those instances, the presence of advocates will help break up the parties’ dynamic and permit the quieter party to have his or her advocate assist.

How Does A Mediated Agreement Get Entered In Court?

Many domestic relations matters must be court-ordered to have any binding effect. For instance, it is difficult, if not impossible, to enforce private agreements for the payment of child support. If Sam is going to pay child support, it will need to be ordered by a judge.

A mediator does more than just help the parties reach an agreement. A mediator will give the parties the tools they need to finalize their case and share all pertinent information with their respective attorneys.

The mediator will likely keep the parties’ attorneys apprised as to updates (and stalls) in the couple’s progress. Once the Memorandum of Understanding is completed, it will be circulated amongst everyone’s attorneys, who will then review the final terms with their client.

Provided the Memorandum of Understanding is clear and without any nits, one party’s attorney will begin draft all documents necessary to complete the divorce, specifically a Marital Settlement Agreement, Parental Allocation Judgment, and eventually a Judgment for Dissolution of Marriage.

The above documents will then be circulated amongst the parties and the mediator. Should any issues arise, the parties will return to mediation on a more narrow scope. Provided everything is agreed, the parties’ attorneys will schedule the necessary court events to finalize the case.

Stern Perkoski Offers Attorney-Assistance With Mediation

Our attorneys are not trained mediators, but we are big proponents of mediation. I know I’m biased, but we provide excellent attorney-assisted mediation services. We would be happy to discuss your plans for mediation or otherwise assist during the process. As always, feel free to contact us, we are happy to help.

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