Mediation FAQ

Does Mediation Work?

Yes, mediation works for many couples and family members. A huge benefit over traditional litigation is the parties have an opportunity to directly hear the other party's concerns and position. The private process permits the parties to listen and consider the other's opinion without compromising their own interests.

Communication through third parties (i.e. attorneys, attorney's staff, etc) can be ineffective and inefficient, and costs inevitably go up due to the amount of time and people needed to convey and interpret a party's concerns.

Furthermore, since mediators do not act as an advocate for either party, a mediator can visualize and verbalize options not previously considered by either party. This helps facilitate a future focused agreement.

Do we need to file for divorce (or a petition) before coming to mediation?

No. Any dispute can be mediated. Also, mediation often prevents parties from having to file a petition with a court.

For court ordered mediation in DuPage County, IL, the parties of a divorce or parentage case will be ordered to mediation by the judge. In a post-decree case (an issue that arises after the divorce is finalized) the parties must attend mediation with a court approved mediator prior to filing a petition with the court.

Erin Birt is a court approved mediator in DuPage County, IL.

Is mediation required by Illinois family law courts?

Many Illinois counties do require mediation before any contested court hearing.

Is mediation used only for family law cases?

No. Any dispute can be mediated.

How are complex issues determined/addressed?

If a party cannot agree on matters in mediation without professional assistance, the parties may agree to hire a neutral professional (i.e. home appraiser, financial expert, business valuator) to provide assistance for complex issues such as determining the value of a home, retirement plan, or business.

In order to keep mediation a private process, the parties can agree and sign an agreement to keep all expert opinions private and used only for purposes of mediation.

Can mediation be used to modify an existing agreement?

Yes. Circumstances change. Mediation can help parties to talk about the life transitions and/or changed circumstances and incorporate any needed changes into the previously reached agreement in order to reflect the new circumstances.

For families that were previously in court, the modified agreement must be entered with the court to ensure that it is enforceable.

Do the parties have to sit in the same room for mediation?

A benefit of mediation is direct communication; however there are appropriate times when the parties may need to be separated. Sometimes the parties need a break and struggle with direct communication and benefit from a brief separation. Also, if there are concerns for safety and security (or if a court order mandates) the parties will be separated and the mediator will meet with each individual in separate rooms.

Can parties that reside in different states mediate?

Yes. One party must reside in Illinois, however, if the other party has relocated, we can make accommodations to mediate via telephone conferences. It is recommended that the parties meet in person for at least one (1) session.

Does a mediator inform us about legal rights?

The advantage of using a mediator that is also a lawyer is that the mediator understands the legal requirements for an enforceable and equitable agreement.

A mediator/lawyer can help you learn about legal information and present options that have been previously accepted by a court. A mediator/lawyer, however, cannot provide you with legal advice or present legal strategy to either party.

What are the risks of Mediation?

Similar to traditional litigation and collaborative law, mediation may involve some of the following risks:

  • Negotiations may not be effective if you have concerns about your spouse, ex-spouse, or family member's ability to be honest and forthright in financial disclosures.
  • Divorce mediation may not be suitable for parties having vast differences in their power such as:
    • financial sophistication,
    • bargaining savvy,
    • history of intimate partner violence or abuse,
    • present difficulties with medical or mental health issues or with substance abuse.

    The above issues must be disclosed to the mediator prior to the initiation of any mediation services to ensure the safety of the parties and/or mediator.

  • It is possible that a resolution will not be reached during mediation.

Divorce FAQ

Divorce, what are the options?

The Law Firm of Erin N. Birt, P.C. offers the following services to assist clients contemplating divorce:

  • Mediation
  • Collaborative Divorce
  • Uncontested Divorce (i.e. content provider for legal documents)

What are the benefits of Collaborative Divorce?

Collaborative Practice is a private process that:

  • encourages mutual respect,
  • keeps the control of the process with the individuals,
  • is time and cost efficient,
  • emphasizes the needs of the children,
  • utilizes a problem-solving approach, and
  • identifies and addresses the interests and concerns of all.

Can we hire one (1) attorney?

Illinois prohibits using one (1) attorney for both parties as it is a conflict of interest.

A couple can chose to hire only one (1) attorney, however, that attorney must represent only one (1) person, the husband or the wife, but not both. The non-represented party would then file a pro-se appearance and must understand that the attorney will not provide the non-represented party legal advice. Under this circumstance, the non-represented party should consult with an attorney prior to signing any documents, however, attorney review is not mandatory.

Collaborative Divorce requires that both parties be represented by a collaborative trained attorney. While this might appear to add costs, collaborative attorneys are trained to negotiate effectively and efficiently and therefore overall costs are lower than a traditional litigated divorce.

Can a divorce be stopped?

If a petition for dissolution of marriage has not been filed, the parties can agree to reconcile. Once a petition for dissolution of marriage has been filed, it is rare that the divorce can be stopped. Only the petitioner can decide to withdraw the petition. There are, however, very few circumstances, such as mental incompetency, that may prevent a case from being heard and determined.

How long does it take to get divorced or separated?

It is difficult to determine how long it can take to finalize a divorce or terms of separation. Timing depends on several factors such as complexity of case, litigation vs. settlement, date of separation, etc. Generally, the most time efficient cases result from an honest and amicable couple. Tactics and deception only prolong a case.

How much will my case cost?

It is difficult to determine how much a family law case will cost. Generally, litigation is most expensive due to discovery, court appearances, contested motions/pleadings, and civil procedure. Collaborative divorce is less expensive than litigation, and mediation is less expensive than collaborative divorce. Overall costs, however, depend on the issues to be resolved and the ability of the parties to effectively negotiate.

Clients receive an engagement agreement explaining the fees and costs associated with the case. In addition, clients receive a monthly detailed invoice that details all costs of service. Our clients are thoroughly informed about costs, fees and hourly rates.

Will seeing a therapist, psychiatrist, psychologist, etc. be used against me?

It depends on the divorce process chosen. In litigation, mental health services may be used as an issue in custody cases. If something arguably affects the child/ren, it may be used in court.

In collaborative divorce and mediation, which is not subject to rules of evidence or made a public record, mental health services are often employed to help the couple and child/ren. If there is a true problem, the parties can craft an agreement that helps all involved.

Does a child have a say in the divorce?

In litigation cases, the judge may consider the child's opinion so long as the child is of a certain age, maturity, and competency. In collaborative law and mediation, the child's opinion is considered so long as the parties agree and/or the child specialist recommends that the child's opinion be considered.

What is the difference between sole & joint custody and an allocation of parental responsibilities?

Under the old statute: Joint custody is appropriate when parties agree on certain major issues that influence the upbringing and care for the child/ren. If the parties cannot agree on such issues, sole custody to one party is appropriate.

Under the new statute: Parents must settle on or a Court will decide how to allocate parenting time and decision making responsibilities for major decisions such as education and health care of a child. The terms “joint custody”, “sole custody” and “visitation” are no longer used.

Who pays child support and how much?

For most families, child support should be paid to the person that has the child/ren the majority of the time. Illinois has statutory guidelines for the amount of child support per child. In certain circumstances, there can be a deviation from the guidelines such that either more or less child support is paid.

For parents with equal parenting time or significant parenting time, such as 146 overnights or more per year, child support is calculated based upon an income sharing approach.

Maintenance – how much and for how long?

Parties that earn substantially the same income likely will not be granted maintenance. In the alternative, a long-term marriage where one party did not earn a substantial income throughout the marriage may be considered a case where permanent maintenance is appropriate. Couples that earn over $250,000.00 per year will determine maintenance support to one spouse based upon certain statutory factors such as education, age, standard of living. For couples earning less than $250,000.00 per year, new statutory guidelines will likely be applied to calculate both the amount and duration of a maintenance obligation.

Can you change attorneys (hire a new attorney)?

A party can change attorneys at any time, except when a judge denies such a request in a litigation case. In most cases, including a collaborative divorce, a party can fire and hire an attorney at any time that person believes there is a breakdown in the attorney/client relationship. Please know that an attorney can also terminate the attorney/client relationship.

Alcohol/Drugs have hurt our marriage, how is that considered?

In litigation, alcohol and drug use can be made a contested and public issue especially if children are involved. The court will react to past or current alcohol/drug conduct, and only after an incident occurs will it address future conduct. One must consider the repercussions of making alcohol/drug use public. It can, and often times does, effect employment which in turn affects child support and/or maintenance.

In collaborative divorce and mediation, the parties can be proactive and structure an agreement to help the future and current situation of the person and family members suffering from the effects of alcohol/drug use. A professional may be retained to help the family address the issue privately.

Can I move out of Illinois with the children?

In Illinois, parents subject to the court system (through a divorce or parentage case) need the approval of the other parent, which can be reached through mediation or collaborative law, or the consent of a judge to remove a child from the state of Illinois.

Consent and court approval is also necessary for moving a child within Illinois but beyond a certain mileage from the other parent.

Ex spouse fails to have our kid/s ready on time, what do I do?

Please read your parenting agreement, you likely need to attend mediation to address the issue before filing a petition in court. Mediation often resolves this issue without the need and expense of litigation.

In a post-decree collaborative case (meaning issues that arise after the divorce), the parties can meet with their respective attorneys to resolve the issue and modify the parenting agreement if necessary.

Ex spouse is not following our parenting agreement, what do I do?

Please read your parenting agreement, you likely need to attend mediation to address the issue before filing a petition in court. Mediation may resolve the issue without the need and expense of litigation.

In a post-decree collaborative case (meaning issues that arise after the divorce), the parties can meet with their respective attorneys to resolve the issue and modify the parenting agreement if necessary.

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