FAQs

“What are your best tips on how to have a successfully mediated divorce?”

Divorce has to be a win-win or it will be a lose-lose. There is no such thing as a win-lose in divorce. Mediation works best when people let go of preconceived positions of how their case should be settled. Anxiety, fear or anger can lead people to “glom” onto a particular solution. In doing so, people often overlook comparable or superior alternatives. Mediation is a process. Therefore, you should let the mediator know your particular concerns so that he or she can tailor the process accordingly. Start gathering financial information and master the data. What are your assets, liabilities and monthly living expenses? Organizing information will make decision-making easier. Mediation is based on informed decision making. Consult with an attorney prior to reaching agreements in mediation; it is hard to go back and take offers off the table. Avoid attacking or criticizing your spouse in mediation — it doesn’t work. Attacking your spouse will not persuade him or her to agree with you; it will simply anger your spouse and make him or her angry and defensive. If your spouse takes a position that you don’t agree with, look for a way to give him or her way to change their position without losing face. Humiliating someone will not bring them around to your point of view.

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“How long does mediation usually take? Are there ways to speed up the process?”

Compared to the alternative, mediation is a very efficient process. Once it gets going, mediation moves at “warp speed”. Most couples complete their divorce in four to six meetings.

The key to the timing is to remember that mediation is a process. Though not always evident, the steps consist of: gathering information; identifying issues; brainstorming options to resolve the issues; and discussing the options to see which ones are acceptable to both parties. If you skip the process and just jump to bottom-line positions, you run a strong risk of reaching an impasse (and possibly missing better solutions).

Mediators strive to achieve durable agreements, as opposed to the usual last-minute settlements that emerge from adversarial proceedings. Too often, parties in the adversarial process settle merely to “get it over with” and have not really bought into the terms of the settlement. Sometimes, they are back in court within months of obtaining their divorce.

Mediators recognize that people do not like to feel rushed when making important decisions. Often in divorce, one person has already “checked out” of the marriage and has firm ideas of how things should proceed. The other person, however, may be back at “day one” and require some time to get his or her bearings. In addition, people have different decision-making styles. If one person needs a little more time, others need to respect that requirement. To hurry such a person risks reaching an impasse or a supposed settlement that rapidly unravels.

The best way to expedite the process is to gather information ahead of time about finances, school schedules, housing options, and whatever other data you need to make informed decisions. The other proactive step you can take is to remain in contact with your attorney. Ask your attorney for his or her impression of how the legal process might deal with an issue and get a range of outcomes. It will speed up the mediation if you know your best and worst alternatives to a negotiated agreement. Think about your real interests (as opposed to just a position) and your spouse’s, and try to envision what you want your life and your children’s to look like after the divorce.

Through development of information and consulting with your attorney, become an informed participant. Concentrate more on the quality of the decision-making rather than just the speed of the process. The more informed the participants, the better the chance of moving forward in the mediation.

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“If a divorce involves complex issues, can you still use a mediator?”

Actually, the more complex a divorce, the more appropriate it is for divorce mediation. Complex divorces are mediated on a routine basis, as are many other such cases, such as patent, commercial, and environmental disputes. Divorce mediation is a problem-solving process that lends itself to a careful, reasoned opportunity to address complex cases.

Typically, divorce mediation begins with the gathering of information by the parties. The information is shared and discussed by the couple. The divorce mediation does not proceed unless both parties agree that all of the information has been disclosed and that both understand it. In complex cases, divorce mediators often bring in (or have available by speakerphone) appropriate, mutually agreed-upon experts, such as accountants, business valuators, or financial planners, in addition to each of the divorce lawyers or family law attorneys to assist the parties in understanding the information. After the parties gather the information and review it, the divorce mediator assists the parties in identifying the issues that need to be addressed in the divorce. Next, the parties brainstorm some options for resolving the issues. The mediator then facilitates a discussion of these options to assist the parties in finding those that are acceptable to both — i.e., their agreement. At each of the above steps, the parties are free to call in any of the above experts in addition to their own family law attorneys.

Voluntary and confidential, divorce mediation offers the opportunity for constructive, collaborative problem solving rather than a competitive, destructive battle.

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“How can I make more effective use of my divorce attorney if I am mediating my divorce?”

Your divorce attorney is an important part of the divorce mediation team. Properly trained mediators will insist that you and your spouse each have a divorce attorney available between sessions for purposes of consultation. Your divorce attorney thus serves as a resource — someone to turn to for information about Illinois divorce law. Divorce mediation depends on the participants making informed decisions, and your divorce attorney can assist you to become an informed party in the mediation. The mediator relies on the divorce lawyer to give clients realistic assessments and feedback.

Early in the divorce mediation process — perhaps even before it starts — ask your divorce attorney about the likely range of outcomes he or she would anticipate if the case were to proceed through the court system. This gives you a context in which to evaluate proposals being discussed in the divorce mediation. You should also ask your divorce attorney to help you identify issues of importance from a legal point of view. Divorce attorneys are good problem solvers: your family law attorney can help you identify and prioritize some of the options available to you.

As the divorce mediation progresses, remain in frequent contact with your divorce attorney. Call the family lawyer between sessions and update him or her on the status of the divorce mediation. Discuss any areas of concern and the agenda for the next session. If you’re having a problem, ask your divorce lawyer to call the mediator.

When you approach the negotiating phase of the mediation, ask your  family law attorney to coach you before the session. If you’re like most people, you do little formal negotiating in your day-to-day life, so ask your divorce attorney to provide tips and techniques that could help create a positive outcome. If you still feel uneasy, consider asking the mediator to permit the divorce lawyers to sit in on the mediation itself.

Finally, listen to the points and concerns your divorce attorney has to offer. Although you’re the one who’s ultimately responsible for making decisions in your divorce — and will have to live with the outcome — your family law attorney has a wealth of experience upon which to draw. Consider what he or she has to say before making your decisions.

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