Mediation is a process employed by many courts to try and resolve some or all of the contested matters in a divorce case, without having to proceed to a trial. Sometimes mediation is mandatory, and other times it is voluntary. The mediation process has the potential to be useful to parties in a divorce case, but mediation also can lead to problems if it is not handled properly.
Mediation involves a person, called a mediator, talking to the spouses in a divorce case to try and reach agreement. The mediator may be appointed by the court, or selected by the parties, depending upon the procedure employed by the county where the divorce case is pending. While exact the mediation process will vary with each mediator, it is common for the mediator to begin by trying to find common ground and agreement on matters that are not contested, hopefully building on agreement over such matters to help move the parties towards agreement on other matters. The mediator may give their opinions on what they think is reasonable or what a judge might do if the case proceed to trial. Often, mediators will also emphasize the risk and costs of trial to try and persuade the parties to settle. At the end of mediation, the mediator will often prepare a written statement that they believe summarizes the matters that were agreed to during the mediation. That statement is then often sent to the parties attorneys, who generally do not appear for mediation.
In some courts, such as the 14th Judicial Circuit Courts (which covers the counties of Rock Island, Henry, Mercer, and Whiteside in the state of Illinois), mediation is mandatory in divorce cases. Early in the divorce, a mediator is selected by the attorneys if agreement can be reached as to who will be the mediator, or by the court if there is no such agreement. Selecting the right mediator can be important in some cases, depending upon the temperaments of the parties and the goals for the case. For that reason, I like to select a mediator only after I have a good feel for how the case is progressing and my client’s ultimate goals.
Some other courts, such as the 7th Judicial District in Iowa (which covers the counties of Scott, Clinton, Muscatine, Cedar, and Jackson), there is no mandatory mediation. Instead, the court holds a settlement conference where a judge fills the role of a mediator, and the attorneys are present with their clients. While the procedure in a settlement conference is somewhat different than mediation, the goal is the same – to help move the parties towards settlement.
To be sure, mediation can be a positive thing for a client’s case. If the case is settled through mediation, the client can save the risk of trial, as the outcome of a trial is never something that can be guaranteed. The client can also save the expense of trial, and have a resolution without having to wait for the trial date (and then the court’s ruling, which might not come for weeks after the trial). Perhaps most importantly, a settlement that is reached by the parties after they discuss things may be a better resolution than a judge could provide, as the parties know the intricate details of their lives and what they want far better than a judge who will only get to see the parties for a day or so at trial. For example, the parties may come up with a child visitation schedule that is very complex but perfect given their work schedules, while a judge may impose a schedule that works but does not fully take into consideration everyone’s wishes.
On the other hand, mediation can lead to a variety of problems. Sometimes, mediation will devolve into a yelling match filled with recriminations between the parties that causes a breakdown in the progress of settling the case. I have had clients who attended mandatory mediation talk to me the next day about how their ex is terrible and how they no longer wish to even discuss settlement. Sometimes such a breakdown in communication occurs because of the parties tempers, the mediator doing a less-than-ideal job, or some combination thereof. In some of those cases, had the parties not been put in the same room together and had instead gone through their attorneys to negotiate, the case could have been resolved.
Another common problem in mediation comes about when there is a disparity in negotiating skills or relationship power between the parties such that one party is persuaded by the other to agree to one-sided terms. The result of such a mediation session tends to be the party that got the bad deal wishing to cancel their agreement, and being reluctant to negotiate again. Due to the manner in which mediation takes place, it is often non-binding (although that varies, of course) such that a party that has “buyer’s remorse” the next day can usually get out of the mediated agreement. Worse yet for both parties, that process tends to result in hard feelings that impede future negotiations.
For better or worse, mediation is a tool employed by the court system in many areas, including certain counties in Iowa and Illinois. Sometimes, mediation can result in a very favorable result for both parties, and in others it can lead to problems that only make the case more difficult and taxing upon the parties. Handing mediation properly, from the selection of the mediator to properly preparing for mediation with one’s attorney, goes a long way to helping make mediation as productive as possible.