Mediation of Family Law Cases

By Scott Tzinberg

There are several options that couples, parents and others going through a family law case can take to come to a resolution of the disputed issues. While litigation is sometimes unavoidable, more people are attempting to resolve cases through various forms of alternate dispute resolution (ADR). One type of ADR is mediation.

What is mediation?

Mediation involves the parties in a case meeting with a mediator and talking through options in a non-litigious atmosphere with the hope that issues can be resolved. The mediator serves as a facilitator during the process and is trained to generate discussion and ideas while keeping the parties focused on the topics that are to be discussed.

What issues can be mediated?

Until recently, most attorneys, judges, and others involved in family law cases only thought of mediation as a process to address child-related issues such as custody and visitation (now allocation of parental responsibility and parenting time schedules). However, now it is not uncommon for parties to request mediation to try and resolve financial issues such as maintenance, division of property/debts, and child support.

Cook County has enacted a local rule for referring cases for financial mediation (there was always a mandatory requirement for custody/visitation mediation). Most counties have a list of court-approved mediators.

Who serves as mediator?

To be approved as a mediator, individuals need to participate in a 40-hour training course and continue to update their skills with continuing education. Mediators do not need to be lawyers even if the issues they will be addressing are legal in nature.

How much does mediation cost?

While Cook County does offer a free mediation program for child-related issues (custody/visitation), if parties are seeking a more expedited process, have a case outside of Cook County, or wish to mediate financial issues, then they will select or be referred to a private mediator. Most mediators, like attorneys, bill by the hour and hourly rates can vary based on experience, availability, and other factors.

What happens during the mediation session?

Each mediator may have their own style, format, or process but there is a general process for the first time you meet with the mediator. Usually each party will have a chance to provide a summary of their position or thoughts on what they perceive to be the disputed issues. This is helpful as it allows the mediator to then define and prioritize the issues for discussion.

The issues will then be discussed and the mediator will inject ideas and options to try and generate more discussion and hopefully get a meeting of the minds on some, if not all, of the pending issues.

The session is usually set for a pre-determined amount of time and can obviously be shortened or extended depending how the discussions are going. If time runs out and it appears that future sessions will be helpful, those meetings can be scheduled.

Once the mediation sessions have ended, the mediator will usually write a Memorandum summarizing what issues were agreed and not agreed. The lawyers will review the memorandum with their clients and if there are no items that need to be refined, changed or modified, a formal settlement agreement can be drafted by the lawyers to present to the Court.

What doesn’t a mediator do?

While your mediator may be a lawyer, their job is not to provide legal advice to either party. They are there to facilitate and keep the discussion moving forward.

Except for certain limited exceptions, the discussions that take place during mediation are confidential. As such, the mediator is not to discuss specifics with either person’s lawyer and cannot be asked to come to court and explain to the Judge what was said or discussed during mediation.

Do you need a lawyer if you are attending mediation?

As explained, mediators do not provide legal advice to the participants in the mediation. Participants are advised to have an attorney with whom they can consult, both prior to and following the mediation. By doing so, the participants are familiar with the issues and the strength/weakness or reasonableness of their position on the disputed issues.

Sometimes lawyers will participate in the mediation. Their role is to advise their client, rather than to advocate or to make legal arguments. One reason attorneys may attend is if one party is not well versed in the financial matters and they want someone there to consult with so that the mediation will be more effective.

Why attempt mediation?

Future relationships: If you have children, you and the other parent will be tied together for years following the divorce being finalized. There will be birthdays, activities, graduations, weddings etc. and if you can resolve your case amicably and fairly through mediation opposed to litigating your case in court, where things can get mean and personal, your children will appreciate the fact that his/her parents do not create a stressful situation when special events occur.

Financial: If a case can be settled during mediation, both parties will certainly save considerable funds. If the only charges you incur from your lawyer are preparing with you for mediation and drafting settlement documents, you will pay much less than constantly appearing in court and asking the Judge to make the same decisions.

Scott Tzinberg is a trained mediator.

Scott Tzinberg is a certified mediator and has been appointed mediator in several cases. He appears on the approved mediator list for Cook County/Domestic Relations.

Categories: Divorce and Separation and Mediation.