There are typically two instances in which people attend mediation: voluntarily to settle a dispute outside of court or as a result of court-ordered mediation. This blog explains the mediation process, as well as some tips for mediation.
The Mediation Process
In family law, mediation is most often utilized as an alternative to litigating issues before a judge. If the parties are unsuccessful in finding a resolution during mediation, then returning to court is most often the next step.
If you have been notified of court ordered mediation, then you must attend. For any child custody or visitation case filed in the Circuit Court of Cook County, whether through a divorce or parentage action, courts mandate parties to attend mediation unless the parties are able to reach an agreement on their own.
Nevertheless, in certain instances—such as cases involving domestic violence, substance abuse, mental illness, or child abuse—a judge has the authority to keep the parties out of mediation. Furthermore, if circumstances are presented that the parties should not be in close proximity, such as one having an order of protection against the other, then mediation would not be considered a viable option.
What Is the Purpose of Mediation?
The purpose of court ordered mediation is to help parents come to a resolution and establish a parenting plan without incurring the costs of litigation. Court ordered mediation is an open forum for each party to express their concerns to a neutral third party certified mediator.
While almost any issue can be mediated, child support is not one of them. Child support is not to be discussed or negotiated during mediation. Illinois has strict statutes in place which govern child support, for that reason, support cannot be used as a bargaining chip for custody or visitation of a minor child.
For any party engaging in mediation, it is important to understand that there is no legal obligation to agree with anything discussed, negotiated, or proposed during court ordered mediation. Similarly, parents often find themselves able to agree on certain elements while reserving the remaining issues to be determined through the Court.
Court-Ordered Mediation vs. Trial or Litigation
Court ordered mediation is much different than a hearing or a trial. There is not a court reporter present and what you discuss during mediation cannot be used against you if you end up in court. Additionally, the mediator working with you may not testify to any of the subject matter discussed during mediation in any future legal proceeding. However, in a situation where facts lead a mediator to be concerned for a minor child’s welfare or safety, mediators have the ability to contact the appropriate authorities.
In summary, mediation is an excellent alternative to litigation for parties that are serious about working together to resolve any issues related to co-parenting and should be approached with an open mind, whenever possible.