Couples who have children together are typically required to participate in mediation as part of their divorce process in Illinois, with some exemptions under specific circumstances. These couples may choose to address issues unrelated to their coparenting arrangements as part of their mediation, or they may leave matters not specifically referred for mediation to the court. For couples who do not have children, a court may or may not order the parties to attend mediation, but the spouses may choose to pursue mediation on their own. Deciding whether to pursue mediation if it has not been ordered by the court, or whether to raise in mediation issues that the court has not specifically ordered you and your ex to address, can sometimes be difficult – particularly since, in many cases, getting a divorce will be an individual’s first encounter with the process of either mediation or litigation. Developing a clear understanding of the differences between these two approaches to resolving disputed matters can put you in a position to make informed decisions. To discuss your specific situation in greater detail, reach out to a member of the experienced Johnson O’Keefe team. Call (312) 319-4444 to connect with our Chicago office today.
What Is the Difference Between Mediation and Litigation in Divorce?
If you have been looking for information about divorce mediation, you have likely read that mediation is a form of alternative dispute resolution (ADR). What you may not have found is a clear explanation of the scenario to which the various ADR methods each present a distinct alternative. The missing “other” side of this equation is litigation. While many people outside the legal profession are inclined to associate the term litigation primarily with the court proceedings stemming from civil lawsuits, in fact “litigation” refers to the entire court-managed process for adjudicating a dispute, regardless of type.
Generally, litigation begins when one party files a petition or complaint and ends when a court issues a decision in the case. In family law matters, this decision typically comes directly from a judge, operating independently – not from a jury, as would be more common in some other types of cases.
Is Divorce Mediation Mandatory in Illinois?
Some states maintain blanket ADR policies that cover all, or practically all, family law matters. In Illinois, the local courts enjoy significant autonomy, and a number of family mediation services are managed through those local offices.
The Circuit Court of Cook County makes family mediation mandatory for child custody cases, both for the initial determination and for any requests for modification of a standing custody order, as well as for petitions to grant visitation rights to any party who is not one of a child’s parents. For other family law matters, mediation is considered “discretionary” in Cook County – with the proviso that the court may, at its discretion, order the parties to attend mediation even in cases for which mediation would not otherwise be required.
Factors To Consider in Choosing Mediation vs. Litigation
The requirement to go through mediation as part of the process for establishing Cook County child custody means that divorcing spouses who have children together will need to attend mediation to, at minimum, address their coparenting arrangements. Similarly, if the judge overseeing a Cook County divorce case chooses to exercise the court’s discretion and order the parties to attend mediation, the individuals involved are not truly faced with a decision in whether to choose mediation vs. litigation for their divorce. However, there are a number of reasons why couples going through a divorce may wish to take advantage of the family mediation services offered in the Chicago area even if they do not have children together, and even if they are not ordered to attend mediation by the court handling their case. A brief comparison of how a typical divorce process works with mediation vs. litigation may make it easier for individuals who are under no obligation to attend mediation to determine whether divorce mediation may nonetheless make sense for their circumstances.
Basic Premise of Mediation vs. Litigation
Mediation is a collaborative process in which a neutral third party facilitates discussion between the divorcing parties to help them negotiate a mutually agreeable settlement. A mediator will not issue decisions (there is a separate method of alternative dispute resolution, called arbitration, in which a neutral third party does issue a final judgment), but instead guides the conversation. An effective mediator typically works to ensure that both parties have the opportunity to express their perspectives and concerns, and may ask leading questions in order to help each participant in the mediation process think through their priorities and offer compromise solutions that address the priorities they are hearing from the other side.
Litigation is the process of taking the divorce through the court system. Usually this means a series of hearings in front of a judge, who will make the final decisions regarding such matters as the division of marital property, the allocation of parental responsibility (child custody), and any orders regarding spousal maintenance (what is sometimes called “alimony”). Litigation is probably the divorce process that most people who have never gone through a divorce themselves are most likely to call first to mind.
Advantages of Mediation
Depending on the circumstances, mediation can sometimes offer significant advantages over litigation for couples who are prepared to avail themselves of the opportunity to work with an experienced professional. Some of these advantages include:
- Cost Savings: Mediation is typically less expensive than litigation. Since it involves fewer legal processes (such as repeated motions and hearings), and less court involvement, mediation can often reduce the overall cost associated with a divorce pursued through traditional litigation.
- Control and Flexibility: When both parties are willing to collaborate in order to seek practical solutions, and offer compromises that address each other’s priorities, the final result submitted to the court can often feel far more comfortable than even a very fair ruling from a judge who will likely have very limited knowledge of the individuals going through the divorce.
- Confidentiality: Mediation is a private process, unlike court proceedings, which are a matter of public record. The privacy afforded by mediation may be especially important to parents who have vulnerable young children, or family members who would likely be hurt by some of the details that might be aired in the course of extensive court hearings.
- Rapid Resolution: In many cases mediation can be quicker than litigation. While mediation may require more than one session, each session typically involves fewer schedules to coordinate as compared to a court date, which can make arranging a near-future follow-up easier for mediation compared to litigation. In addition, many court proceedings specify a number of days that must be allowed, after either party enters a new filing, for the other party to enter their response. While these timelines are in place to ensure that each side has an adequate opportunity to collect their own evidence and documentation, they also provide an opportunity for spouses who wish to inconvenience a former partner to “drag feet” and draw out the divorce process.
- Conflict Mitigation: The cooperative nature of mediation can reduce hostility and help preserve a cordial relationship, which is particularly beneficial when children are involved.
An experienced Chicago divorce attorney with Johnson O’Keefe may be able to help you evaluate whether mediation offers a strong option in your situation.
Advantages of Litigation
Like mediation, divorce litigation can have its advantages. Either may be appropriate, depending on the specifics of a couple’s situation. Some of the advantages that may lead Illinois couples to opt for litigation in a divorce include:
- Legal Structure: Litigation provides a formal legal structure and clear process, which can be reassuring for those who prefer a detailed, systematic approach. Individuals who are frustrated by the uncertainty of an open-ended discussion – even one guided by a trained and experienced mediator – may find themselves inclined to choose litigation over mediation for their divorce.
- Professional Representation: While there is no legal obligation to seek professional counsel for divorce litigation in Illinois, working with an attorney familiar with the state’s divorce procedures is a common choice. Always allowing for individual variation, when both parties work with their own counsel the attorneys often play a more prominent role in divorces handled via litigation, rather than mediation. Relying on an experienced professional can be reassuring to individuals in high-stress divorces.
- Protection in High-Conflict Situations: For individuals in high-conflict situations or those with significant power imbalances, litigation can often afford greater opportunities for protection and a “buffer” between the spouses. When there is a history of abuse in the relationship, the power of the court to issue orders of protection – a power that mediators do not possess – can be crucial to ensuring not only the fairness of the divorce process, but the safety of the individuals involved.
Even if mediation would normally be mandatory in your situation because you have children with your ex, the Illinois State Bar Association explains that there are exemptions specifically built into state law for “impediments” to mediation. You may wish to consider speaking with an attorney in the greater Cook County area about seeking an exemption based on a history of abuse as impediment if you feel unsafe in negotiating with your former partner.
Speak With an Experienced Divorce Lawyer in Cook County
If you are approaching divorce in Illinois, you are likely to encounter questions about divorce litigation vs. mediation. Whether mediation is optional in your situation can depend on a number of factors – but even if you are not ordered to attend mediation by the court managing your case, there may be reasons why you might wish to consider divorce mediation before proceeding with a litigated resolution to any disputed matters in your divorce. To gain perspective and a fuller understanding of your legal options, consider scheduling a consultation with an experienced family law attorney in the Chicago area. Call (312) 319-4444 today to make your appointment with a member of the Johnson O’Keefe team.