Not All Divorces Have to End Up in Court – Written by Jane Waller, Schiller DuCanto & Fleck LLP

In my almost 28 years on the bench — most of which I spent presiding over family matters in the Circuit Court of Lake County in Waukegan —  I had a front-row seat for an amazing display of human nature. I met families in crisis, parents in stress, and children in trouble. They arrived in my courtroom with troubling stories of conflict, loss, disappointment, sadness, anger and grief.

I listened to their stories, sorted out their issues, ruled on their motions, heard their evidence at trial, and entered orders awarding custody, dividing property, setting child support, and establishing maintenance. Over the years I believe I developed the ability to see the middle ground in a dispute and to grasp the heart of the issues presented to me. My objective was to help the parties resolve disputes without extensive — and expensive — litigation.

Now that I have left the bench and entered private practice, the pain my clients experience when restructuring a family through litigation is even more apparent. It is therefore my goal to use my experience as a judge to help people ease their pain and reduce their cost by informing them on options to resolve their disputes through an alternative to litigation, including the process of mediation.

What is mediation?
Mediation is basically a process of negotiation with the assistance of a professional but neutral advisor. The purpose is to help the parties determine their priorities, communicate effectively, and identify reasonable and mutually acceptable options to resolve their dispute.

When is mediation appropriate?
Mediation works well for people who are emotionally capable of communicating with each other and who realize the advantages of avoiding costly litigation. The parties must first be able to identify and agree upon what issues are in dispute. They must be willing to compromise to reach a resolution. And they must be prepared to accept that a mediated settlement will allow them to determine the outcome rather than having a decision imposed on them through stressful litigation and the court.

When is mediation not recommended?
Mediation is not appropriate in all cases. When personality disorders, substance abuse, or domestic violence are present in a relationship, mediation is often impossible. It is also not appropriate when the parties are in heated conflict, are unable to act in good faith, or fail to fully disclose the relevant issues and their true assets.

Are there other options?
In cases where mediation is unlikely to succeed, litigation in a courtroom remains as a common alternative. However, many parties may benefit from a third option, what is known as Collaborative Law. In the collaborative process, each party retains an attorney who agrees to manage the case without court involvement. The attorneys assemble teams that may include financial experts and mental health professionals, and they work together to help divorcing couples reach a settlement out of court. If the collaborative process fails, and mediation is not seen as an option, the parties are free to pursue a litigated resolution.

Divorce is difficult. However, you can minimize the emotional and financial cost by selecting the process that is best for your family. If you and your spouse can be civil with each other, and if your goal is a fair settlement, mediation is a highly valuable process that can help both parties move forward in their new circumstances with a fresh and positive attitude.

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