What Issues Can Be Mediated?
All. That’s the short answer, but also a nearly complete answer. If you are considering a divorce in Illinois, or a premarital agreement or a postnuptial agreement, you can mediate. You can mediate all prenuptial agreement issues. If you are married and trying to save a marriage or protect assets, you can submit all postnuptial agreement issues to mediation.
What about in the event of a dissolution of marriage? You may have heard that only custody and visitation (now termed, parental responsibilities and parenting time) can be mediated. While courts in Cook, DuPage and surrounding counties will only appoint a mediator for these issues, you can choose to mediate financial issues as well. Child support, maintenance, property (asset and debt) distribution can be mediated. Valuations of a business, stocks, etc., likewise can be resolved in mediation.
It is likely that a mediator appointed by the court for parenting time issues will not agree to mediate financial issues, despite the parties agreement. He or she was appointed for a limited purpose. However, you and your spouse can choose to mediate, before a mediator is appointed, or before a case if even filed.
Imagine that you mediate your issues without having a case filed with the courts of Chicago or Wheaton or Joliet or St. Charles, etc. Instead, both parties see an attorney practicing family law and experienced in mediation. Each party is equally informed, and neither feels that the other party has an upper hand. Each party discloses what the mediator seeks. And hopefully, the mediation ends with a full settlement agreement.
The mediator can draft the agreement, which each party can review with his/her attorney. Any remaining issues can be mediated or just worked out between the parties. Then, one of the parties can file a Petition for Dissolution of Marriage saying that agreement has been reached on all issues. Within 2-4 weeks after filing, you can have your only and final court appearance, the Prove-Up, to offer the agreement to the Judge for approval. If it was drafted by an experienced attorney, it should be accepted.
Imagine the time and money you would save, if you took this route. Imagine how much less you and your children would suffer. Not only can you mediate, you should mediate all issues. If mediation fails, you can always litigate afterward.
One tip to always keep in mind is that the mediator works to get you and your spouse/former spouse to reach agreement. The mediator may feel bound to not upset a final agreement, so if you are not sure of your rights, ask and ask and ask. Do not come in saying you agreed regarding child support or maintenance, and if the other party says you did, say maybe in general, but you want to know what your rights are. The mediator should answer all your questions. How does alimony work? How much could I get under the statute? And so forth. First become informed, and then start staying, “I agree.”
There are exceptions, such as when there is an Order of Protection in place, or issues of major domination of one party over the other. However, some can still be overcome. For example, parties can come and leave at different times and be in different rooms (what is often called, “shuttle diplomacy”, the mediator “shuttles” between the rooms). In terms of domination of one party over the other, a good mediator should recognize this and strongly advise that the parties obtain separate attorneys to review any draft agreement reached before signing.
Please contact me regarding any mediation questions you have, or to schedule an initial mediation session in Chicago or Wheaton.
