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MEDIATION IN DIVORCE CASES |
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What is mediation in the framework of family law (divorce, paternity, custody, etc.)cases? |
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Is mediation required? |
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Who should not mediate? |
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Should a battered spouse enter into mediation? |
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Who are the mediators? |
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What should be mediated? |
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If I do not know the extent of my spouse's income and assets, should I enter into mediation? |
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Are there advantages to mediation? |
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Is mediation less expensive than litigation? |
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| Q: |
What is mediation in the framework of family law (divorce, paternity, custody, etc.)cases? |
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It is an attempt, by a disinterested third party, a mediator, to bring about an agreement on contested issues in a family law case, such as a divorce, paternity case, adoption, custody case etc. A mediator makes no decisions. Mediation is successful if, with the aid of the mediator, the parties reach an agreement. If there is no agreement the parties must continue in the litigation. |
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| Q: |
Is mediation required? |
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No - - except most courts, like the Circuit Court of McHenry County, require parents to attempt to mediate their differences in regard to custody and visitation before the issue can be litigated. |
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| Q: |
Who should not mediate? |
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The weaker partner in the relationship. Settlements are made when both parties have equal negotiating and financial power and equal access to financial information, but that doesn't happen often. A good lawyer is a way of balancing the scales. A mediator should make up the imbalance between the parties, but the danger is that the mediator will want the mediation to succeed and the best way for it to succeed is for the mediator to side with the stronger party. My experience is that it is the stronger party who usually wants mediation. |
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| Q: |
Should a battered spouse enter into mediation? |
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Never. In fact the rules of the Circuit Court of McHenry County state that there should not be mediation where there has been domestic violence. |
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Who are the mediators? |
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The Circuit Court of McHenry County has a list of eligible mediators. They are usually mental health professionals or lawyers who have completed a minimum of forty hours of mediation training. Being licensed as a lawyer, or being licensed or registered as a mental health professional, and the taking of a crash course in mediation does not necessarily equip the mediator to sort out the complexities and advise as to the consequences in the highly complicated field of family law. There are a few good mediators and many mediocre ones. |
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| Q: |
What should be mediated? |
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Typically in McHenry County , because rules of court require it, child custody issues are mediated, but typically financial issues are not. The issues of divorce-property division and maintenance (alimony) are complex and, in my view, should only be mediated by lawyers who have a thorough understanding of matrimonial law. |
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| Q: |
If I do not know the extent of my spouse's income and assets, should I enter into mediation? |
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No. You cannot divide the pie fairly until you know the size of the pie. Divorce proceedings allow for discovery, that is, obtaining production of documents, taking of depositions etc., so each party is fully informed of the financial facts and figures. If you enter into mediation regarding financial matters, you must know the financial facts. |
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Are there advantages to mediation? |
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Yes. The process is less adversarial and therefore less stressful, and the resultant agreement may be a better product because it had the open input of both parties, and therefore each party may be more satisfied with the agreement. |
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| Q: |
Is mediation less expensive than litigation? |
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It can be, but don't depend on it. If you compare a successful mediation to a contested trial, the mediation is much cheaper. If you compare mediation to negotiations between lawyers, the mediation may or may not be cheaper. If, as is usually the case, the mediated issues are complex, the parties will still need lawyers to advise them while they are going through mediation and to finalize the agreement. If the mediation is unsuccessful the mediator will still have to be paid and the parties will start over with attorneys. In short it is difficult to state whether mediation will be less expensive. |
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