Posted on December 7, 2024

When is Divorce Mediation Not Recommended?

In a perfect world there would be no divorce lawyers. At the end of their relationship, people would simply go to a mediator who would calmly and rationally divide their assets, calculate support and determine parenting time.

While some divorcing couples do use mediators to finalize the terms of their divorce, the majority of divorcing people (in my experience) use divorce lawyers to enforce their rights under the law.

When is divorce mediation a viable option for divorcing Illinois couples? When is divorce mediation not recommended for divorcing Illinois couples?

When Is Divorce Mediation Not Recommended In Illinois?

Mediation only works if both parties are being completely transparent. A mediator cannot divide assets that one party is not aware of. A mediator cannot calculate support if one of the party’s incomes is not completely known. A mediator cannot even advise as to what a divorcing person’s rights are (even though they could look them up on my website).

“No person shall receive any compensation directly or indirectly for any legal services other than a regularly licensed attorney” 705 ILCS 205/1

In reality, the most a mediator can provide two people trying to settle their divorce in Illinois is a “memorandum of understanding” memorializing the meeting of the minds that the parties arrived at.

That memorandum of understanding can then be formalized by an attorney or by the parties themselves as a Marital Settlement Agreement and/or an Agreed Allocation of Parenting Time and Parental Responsibilities. The subsequent steps to actually “prove up” the divorce through the courts must then be taken, again, without a mediator.

The memorandum of understanding is not an actual agreement. The memorandum of understanding is not even binding on the parties.

Every county has its own rules about mediation. Cook County defines mediation explicitly.

“”Mediation” means a non-binding confidential process by which a neutral third party, selected by the parties to the case or selected by or with the assistance of the court, assists the parties in reaching a mutually acceptable agreement ” Rule 13.4(e)

While mediation is “non-binding”, it’s also “confidential.”

“Mediation communications shall be confidential and privileged, not subject to discovery or admissible in evidence in accordance with the provisions of the Uniform Mediation Act, 710 ILCS 35/1, et seq.” Cook County Rule 13.4(e)(ix)(a)

A party to a divorce, cannot even use some of the mediated agreement or communications that let to the agreement in a court if the mediated agreement is not properly finalized.

Finally, there is a fatal flaw in the incentives of a mediator. A mediator is deemed successful if a deal is reached. The terms of the deal can be immaterial to the mediator. Both parties may be persuaded by a mediator to waive important rights that the parties are probably unaware of…because a mediator without a law license cannot even advise them. This can result in an agreement that is bad for both sides but a deal nonetheless. A success for the mediator but a disaster for the parties. The true final result of a mediated divorce will only be revealed when the impractical plan goes into action months later.

The above is not to besmirch divorce mediators. Mediators can be a wonderful sounding board but, in my opinion, they should not be the only voice at the negotiation table.

I have practiced law in Illinois for 18 years and Florida for 6 years. In Florida, mediation is mandatory and must include the attorneys if the parties are represented. This allows a party to know their rights and what would happen in court if they did not accept the mediated settlement agreement. In my experience, attorney assisted mediation is enormously successful and I fully endorse mediation…as long as divorce attorneys are also involved in the process.

Mediation usually fails because of a lack of information. The party with more assets or income will want to minimize those assets and income during mediation. Likewise, the party with less assets and income will be trying to inflate the other party’s assets and income. Without a complete and verified accounting of both parties’ assets and incomes, no mediation can be fair.

A mediator simply doesn’t have the tools to verify the parties assets and incomes. Divorce lawyers, however, can verify assets and incomes via the discovery process. Any question as to a party’s assets and incomes can be resolved via a subpoena, sworn deposition, notice to produce or interrogatory. In contrast, mediators just have to take the parties at their word.

When Is Divorce Mediation A Good Idea In Illinois?

Using a mediator to settle the issues in a divorce is a good idea if the issues are transparent, simple and agreed upon. But, if you know your rights, your soon-to-be ex’s finances and you are both open to coming to a mutually acceptable agreement…do you even need a mediator?

If you don’t need a mediator, you probably barely need a divorce lawyer to finalize your documents. You’re in for an affordable divorce.

When Is Divorce Mediation Mandatory In Illinois?

Whether divorce mediation is good or bad, sometimes divorce mediation is mandatory.

Under local county rules, divorce mediation is mandatory based on what issues the parties are facing in their divorce.

“For the following categories of contested issues, mediation is mandatory unless an impediment to mediation exists:  (1) initial determinations of allocation of parental responsibilities; (2) modification of allocation of parental responsibilities; (3) relocation of the child; 4) non-parent visitation and third party allocation of parental responsibilities.” Cook County Court Rule 13.4(e)(ii)(b)

Mediation is never required if one party is an abuser. Mediation is automatically waived if there has been “past or present family violence or abuse, mental or cognitive impairment, alcohol abuse, or chemical dependency. Family violence or abuse includes harassment, intimidation, and interference with personal liberty.” Cook County Court Rule 13.4(e)(i)(b)(3)

Clearly, I am skeptical of mediation in an Illinois divorce. My 18 years of experience has taught me that there are great power imbalances between couples who are divorcing. Those power imbalances are leveraged during mediation. The mediator, eager to strike a deal, can overlook the underlying unfairness. Even if a mediator wanted to investigate the nature of lopsided deal, they do not have the tools to do so. Unfortunately, a divorce mediator is often like a real estate agent. They don’t care what house you buy…so long as you buy a house.

If you would like an Illinois divorce attorney to assist you in mediation or bypass mediation altogether, call my Chicago family law firm to speak with an experienced divorce attorney today.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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