A Closer Look Into Divorce Mediation

 Posted on June 22, 2014 in Collaborative Divorce

If you have been contemplating filing for divorce, you have probably heard the term "Alternative Dispute Resolution" mentioned, but may be unclear of exactly what it means. In the divorce law context, Alternative Dispute Resolution (ADR) refers to a quasi-legal process of settling your divorce outside of a courtroom. ADR may take place in a variety of forms such as collaborative divorce or mediation. Collaborative divorce, the process of working with the other spouse or her attorney collaboratively and positively to arrive at an out-of-court solution, is a topic covered in prior posts.

Mediation, the other common form of ADR, is the process of sitting down with a trained, neutral party to resolve legal issues and possibly social and emotional issues associated with the divorce. To some experts, the mediation process is better designed to address the social and emotional difficulties couples face when going through a divorce and the life changes that accompany it.

The core of the mediation process is legal mediation. In these proceedings, couples come together to solve disputes that arise during divorce, such as those concerning property division, child custody, child support, and alimony. Though it is advisable that couples still retain the services of a divorce attorney during the divorce process to help them strategize and protect their legal rights, parties can choose whether or not to have lawyers present at all or some of the mediation sessions. Overall, the goal of mediation is not to win or lose against an estranged spouse but to reach the arrangement that best satisfies both parties.

Advantages of Mediation over Traditional Divorce

Some advantages of mediation over traditional divorce proceedings are as follows:

Less Stressful (usually): The adversarial legal divorce process can be just that: adversarial. In a basic sense, this means that at divorce hearings, rights to important benefits and property are put on the table, and you and your estranged spouse must present arguments as to who is more deserving of these objects of litigation. Then, the judge ultimately awards a winner based on the arguments presented. The high stakes nature of litigation as well as the uncertainty inherent in the process can make the process stressful for some clients.

More Private: Mediation occurs in a closed room between you and the estranged spouse, the trained mediator, and possibly each party's attorney. In contrast, divorce proceedings take place in a public courtroom where you may be forced to air your dirty laundry in front of observers or other litigants and attorneys waiting to have their cases heard.

More Time-Efficient: Divorce can be a drawn out and time consuming process. Phases in the litigation such as the discovery phase can take several months to complete. This time may be further extended if one or both parties delay in requesting or producing documents, filing necessary paperwork or are unprepared for legal proceedings and need to request continuances. In addition, divorce proceedings may require several hearings, which are scheduled by the Court and may be several months apart. Mediation can be a more time-condensed process and parties to mediation usually have more input on when sessions take place. Thus, through mediation you may be able to put the divorce behind you faster.

Lower Cost: In traditional litigation, parties need to file legal documents, complete paperwork and complete tasks during each step of the divorce process. Much of this work is done by divorce attorneys who must charge for their work. While mediation also takes some time and may involve drafting of documents such as agreements, there is less procedural work to be done by lawyers overall and this may result in less expense for the parties.

Disadvantages of Mediation

It is important to stress that mediation is not a superior alternative for everyone. For one main reason, if couples can't reach an agreement in mediation they may have to head back into the courtroom anyway to resolve the difficulties through traditional litigation. Many clients who choose to go through traditional legal divorce do so because they believe it would be impossible to reach a favorable result through consensus.

Also, some clients choosing traditional divorce over mediation do so because they believe their spouse does not want to compromise or their own and their spouse's legal interests are simply too opposed to result in a compromise. Some clients simply feel justice would be better served if they can plead their case to a judge. Other clients realize the risk associated with trying a mediation and having it fail would mean they would spend more time and money and have to end up appearing in court before a judge to decide their legal fates anyway.

At Kathryn L. Harry & Associates, P.C., we work with divorce clients in Illinois in both traditional divorce settings as well as in ADR sessions. We are experienced at interviewing clients about their individual situations and with helping the clients to parse through which divorce option is best of them. We invited you to contact us online or at 630-472-9700 to arrange a free consultation with one of our divorce law attorneys. We serve clients in DuPage County and the surrounding areas.