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Mediation in divorce: The pros and cons of the two main types of mediation

May 01, 2017
By Chicago Lawyer
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.

dstefani@katzstefani.com

For as long as I can remember, when it comes to custody issues in a divorce case, Cook County local rules have always required parties to mediate these issues. For almost three years now, Cook County local rules allow courts to order litigants to mediation on financial issues. So far, it has been an effective way to resolve tough financial issues that would otherwise have gone to trial.

There are two main types of mediation: facilitative and evaluative. Facilitative mediation is more traditional and used in most cases. In facilitative mediation, the mediator usually does not comment or opine on what would happen if the case went to court.

The facilitative mediator is not in charge of telling the parties what the likely outcome would be. The mediator’s job is to understand each party’s point of view, help the parties find various options for resolution and facilitate discussions, negotiation and a settlement/resolution with which both parties feel comfortable.

Facilitative mediation has many benefits, but there are some drawbacks. The process can often take longer than expected (sometimes several days) and often ends without an agreement. There is also a concern that a weaker party may not be able to protect themselves, may feel pressured to make decisions he or she is not comfortable with or might not have enough experience to make those decisions, even if represented by counsel.

Evaluative mediation allows the mediator to evaluate each side’s legal position along with the cost benefit of litigating that position. The mediator also provides an expected court outcome to the parties. An evaluative mediator will often point out the strengths and weaknesses of each side’s case and predict how a judge would likely rule on each issue. While used less than facilitative, it can be an effective way of resolving a divorce case without having to go to court and reveal the details of a litigant’s personal issues relating to their children, their parenting and their finances.

Evaluative mediation is particularly effective because the mediator apprises the parties of their legal rights and tells each the likelihood of success on the merits of their respective positions. Under the Cook County local rules, evaluative mediation cannot be ordered by a court, unless both parties and the mediator agree. Thereafter, the evaluative mediator’s recommendation cannot be made available to the court, unless both parties agree. Additionally, the party who rejected the recommendation cannot be disclosed to the court.

Most evaluative cases that I have seen are in situations where the attorney and the litigant attempt to resolve things first (before any litigation begins) with the other attorney and litigant. From the cases I have seen, they then typically hit a quick impasse because neither side is able to agree to a likely outcome of certain issues and neither side is able to convince the other of their position.

Evaluative mediation usually includes a neutral third party which typically is a retired domestic relations judge, who can tell either party (or both parties) when their positions are unreasonable and suggest a likely result if litigated in court.

There are also situations when there is more than one evaluative mediator (typically a panel of three) who will hear each side’s position and render a written recommendation supported by financial affidavits and other financial information requested by the mediator(s) or suggested by a party.

Certainly, litigants would be more comfortable with a certain result if it came from an experienced neutral third party (or a panel) who knows divorce law versus listening to their spouse’s attorney advance his or her opinion as to the likely result.

I have found evaluative mediation to be more effective than facilitative mediation in getting the parties to reach an agreement, especially in the case of financial issues. Facilitative mediators generally come from various backgrounds, including the mental health area and the legal area, former attorneys or judges. The most effective evaluative mediators that I have seen are former judges who are now doing mediation services.

There are definitely benefits to these two types of mediation, and to mediation, in general. Successful mediation makes a divorce case settle more quickly, parties almost always end up with lower legal fees and parties can walk away with better overall feelings toward one another. This since the decisions they made were partly their own and did not solely come from a judge’s ruling.

There is also confidentiality in mediation so little information is in the public record. The chances for post-litigation also go down when parties mediate their divorce case. The drawback is that if mediation is unsuccessful, there are sometimes great economic and emotional wastes, not to mention the passage of time which usually results in a delayed outcome in court.

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