Should We Use Mediation in our Family Law Case?

 Posted on February 12, 2025 in Family Law

Once a family law matter (i.e., divorce or paternity case) is filed with the courts, the case may feel overwhelming and you might be unsure how to proceed. As one may expect, the parties always have the option to litigate the underlining issues and take the matter to a trial where a judge decides the fate of the case. However, you may prefer a more amicable approach to the case and to resolve your issues without the Court’s direct involvement.  One way to do that is through the process of mediation.  In Illinois, mediation can be mandatory or voluntary depending on the underlying issues in the case and the local rules for the jurisdiction in which the case is filed.

What is mediation?

Mediation is a technique that utilizes a third-party neutral (a mediator) to assist parties in resolving disputes and reaching a resolution on some or all of the issues in the case.  The mediation process provides the parties with a unique opportunity to reach a resolution in a collaborative manner, rather than allowing the Judge to impose a decision that the parties have no say in. It is important to note that the mediation process and the topics discussed in mediation are confidential and cannot be used against either party should the case proceed to trial.  Mediators are trained attorneys who have been approved by the court and their role is to facilitate settlement between the parties.    

When is mediation mandatory?

As stated above, in Illinois there are times when it is mandatory for parties to attend mediation. Specifically, the Supreme Court rules in Illinois require parties to attend mediation when they cannot reach an agreement on the initial allocation of parental responsibilities or parenting time (i.e. visitation and custody) unless there is an impediment to the mediation process (for example, domestic violence or substance abuse).  Also, many parenting agreements/judgments require mediation if there is a dispute regarding a modification or request to change the parenting schedule or allocation of decision-making responsibilities.  

Voluntary mediation: When? What? Why?

Unless the parties are in the middle of a trial, a Judge will generally allow the parties to attend mediation at any point during the pendency of the litigation if that is their desire. Furthermore, the parties do not have to wait until a case is pending to attend mediation nor are they prohibited from attending mediation after the case has been resolved.

It is important to note that parties without minor children can and often do attend mediation to assist in the divorce process. More often than one would except, parties going through a divorce or other family law issue are able to resolve the issue prior to ever commencing a court case. Many couples in Illinois will attend mediation to assist them in their settlement negotiations, so they can proceed with the case as an uncontested matter. Attending mediation before filing a case of action can save the parties substantial amounts of money and allow the parties to maintain greater control over the outcome of their case.

What can be mediated?

There are no restrictions on what the parties can mediate in a family law case. The parties can use the mediation process to resolve some or all of the underlying issues in the case. For example, some off the issues that are addressed in family mediation, include but are not limited to:

·         Division of property and liabilities;

·         Maintenance or support of a spouse;

·         Child Support;

·         Parenting time; and

·         Decision-making responsibilities for decision relating to a child’s health, education, extracurricular activities, and religion.

Why attend mediation?

The mediation process can be beneficial to the parties for a number of reasons.  For one, mediation is generally less costly than litigation as the parties will not incur the court cost and attorneys’ fees associated with contested court proceedings. Additionally, as previously mentioned, mediation provides the parties with more control over the case because it takes the issues out of the Judge’s hands to allow the parties to resolve the issues themselves. Furthermore, the mediation process can preserve the parties’ relationship as the process is more collaborative and much less adversarial than traditional litigation. Lastly, if the parties can reach an agreement in mediation, it can significantly reduce the amount of time the case takes to resolve.

How much does mediation cost and who pays?

The cost of mediation is heavily dependent on the complexity of the issues being mediated and varies from jurisdiction to jurisdiction. DuPage County has the benefit of the DuPage Family Center which provides resources to parties going through family law cases, and includes a free mediation program if the parties to the case have never been married.  In cases where the parties are married, the court appoints a private mediator and sets a standard mediation rate for 4 hours of time.  Typically those costs are split equally between the parties.  However, the court will likely retain the right to reallocate the cost of mediation, which means the court can divide the fees differently in the event it finds an equal division is unfair or inappropriate based on the circumstances of each party’s financial situation.

Alternatively, if the parties choose to attend private mediation and it is not court ordered, they can expect that the mediator will charge their regular hourly rate, typically between $300-500 per hour.   

For all of the reasons stated above, mediation can be a great tool to help you resolve the issues in your family law case.  However, mediation does not absolve the need for legal counsel.  An attorney can help prepare you for the mediation process, including completing intake forms and establishing a tone for the process.  In some instances, attorneys can even attend mediation with you, via attorney-assisted mediation, if both sides agree.  Finally, your attorney should review the mediated agreement before it’s signed and ensure you fully understand all of the legal implications.  Most of the time a mediator will not prepare the actual order or allocation judgment, but will simply summarize the agreements reached and then an attorney needs to draft the actual agreement(s).

If you are going through a family law case or have more questions on this topic, it’s important to consult with an attorney who specializes in these cases to explore your options. The esteemed attorneys at Nagle & Giese, P.C. offer free thirty-minute consultations and available to help you navigate the mediation process.    Please visit our website today at www.dupagedivorcelawyers.com or call us at 630-407-1200.