Mediated Divorce v. Traditional Divorce without Mediation: Could Mediation be right for you?

Whether you are just starting to enter into the world of divorce or have been hanging around for a while, you have probably heard about Mediators or “Going to Mediation”, and are probably wondering what it is all about.

Before you can understand divorce mediation, it helps to first know a little bit about the steps that a typical divorce takes in Illinois.  First of all, getting divorced is not like going to court for a traffic ticket (go to court once & you are done, usually in a matter of a few weeks or months).  It is much more complex than that because typically we are dealing with issues like:                                                                                                            

  • Splitting the money
  • Dividing the debt
  • Deciding what happens to the house
  • Division of 401k’s, pensions & other retirement
  • Division of parental obligations
  • Division of parenting time (as of 2016, the term “custody” is gone, in case you are wondering)
  • Child Support
  • Business valuations, if there is a family company
  • Spousal Support (sometimes)

If the couple cannot come to an agreement on these issues, then the judge will decide them at a trial. It is everyone’s hope to avoid a trial because the divorce will take longer, cost a lot more, and in the end you may not get what you wanted.  So, most people try to “settle” the case with their soon- to- be former spouse, with the guidance and help of the lawyers.  This can take a long time- anywhere from 6 months (not typical) to 2 years, with the average divorce taking 12-18 months.  Once everyone is familiar with what the assets and liabilities of the marriage are, they start negotiating. During the negotiation phase, people talk to their lawyers to decide on a strategy, the lawyers talk or write letters, proposals go back and forth and are haggled with. There’s a lot of “I’ll talk to my client and get back to you” that goes on- and sometimes it can take a long time- too long, quite frankly- to get a response from the other lawyer; only then to find out that the couple is still no where close to agreeing on anything.  In the meantime, the judge expects to see the lawyers back in court every 4-6 weeks for “status calls”- to inform the judge as to how the case is procedurally moving along. 

In my humble opinion, this takes way too long. The law is just not set up in a manner that allows to streamline things a bit quicker. To make things worse, once someone decides that they have to file a motion, other issues tend to stall while waiting for the outcome on that one particular issue. For example, let’s say that someone is not turning over documents showing how much money he or she is making.  Well, that is a pretty important thing to know before some of the other issues are settled.  It is the kind of thing that should be disclosed within 28 days of the request being made by one person’s lawyer.  If it is not done, there are certain steps that have to be taken by the lawyer who wants the information, before it can even be brought to the judge’s attention.  Letters have to be written, phone calls made, etc – in an effort to try to get the documents “the nice way”. Only after those efforts have been exhausted can a “motion” be filed in court. Once that is done and the issue will have the attention of the judge- the other side can buy more time by asking for 28 days to respond to the motion in writing. NOT to actually turn stuff over, but to “respond”, and then the court may schedule a “hearing”  on the matter another month out.  Already we are at 4 months wasted right there before people are even ready to start negotiations. That is just one example of how divorces can end up taking so long. (For the record, I don’t play those games. If we have to turn over discovery documents- I encourage my clients to just get them DONE- no one wins by dragging their feet & inviting needless trips to court).

Once someone is resigned to the fact that a divorce is going to happen for them, the last thing in the world they want is to sit around waiting for it to be over, paying lawyers, and not knowing for certain what the future holds for them on the other end of it.  This is where Divorce Mediation comes in.

This is where Mediation comes in

What it is:

 The best way that I can explain what mediation is, is to tell you how it is handled in my office.  Husband, Wife & I meet in my office after each side has had a chance to speak to me individually about the process, to make sure that it is something that they would like to try & that I think that they may benefit from. Once mediation starts, we identify where the problem is (example: is there disagreement on how much time each parent spends with the child or is the argument about what will happen to the house?)  There may be more than one area that needs to be addressed.  Using various processes and techniques that I have been trained in, I help you two try to come to an agreement. Sometimes it is a matter of compromise or just looking at things slightly differently than you did before. There may be trade offs. In the end, you want to have an agreement that you are both comfortable with.  You are not required to come out with an agreement, even if you were ordered to go to mediation.  Not everyone comes to a full agreement, and partial agreements are not uncommon- but I have been surprised by how often people are able to reach agreements on one or more issues! 

You may also wish to learn how exactly, mediation might help. 

Carol O'Connor Cadiz
Connect with me
Attorney & Owner at O'Connor Cadiz Law: Bankruptcy, Injury, Real Estate & Mediation