New Rule Requires Mediation For Financial Issues

Author 
Daniel R. Stefani

For as long as I can remember, when it comes to custody issues in a divorce case, Cook County law has always required parties to mediate these issues.  Now, Cook County is doing the same for financial issues.  The Rule allows Courts to order litigants to mediation on financial issues.

Why the change?  There is a logjam of divorce cases which delays divorce cases from resolution.  Mediation not only saves clients time and money, but it improves efficiency in our Court system.

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 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 very 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 seldom used, it can be an effective way of resolving a divorce case without having to go to court and spread of record 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.

While seldom used, 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’ve 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 who will hear each side’s position and render a written recommendation supported by Financial Affidavits. Certainly, litigants would be more comfortable with a certain result if it came from an experienced neutral third party who knows divorce law versus listening to their spouse’s attorney advance their opinion as to the likely result. 

I have found evaluative mediation to be more effective in getting the parties to reach an agreement than facilitative mediation, 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 are former Judges who are now doing mediation services.

There are definitely benefits and drawbacks to both types of mediation, and to mediation, in general. Mediation tends to make a divorce case settle more quickly, parties almost always end up with lower legal fees, and parties can walk away with better overall feelings towards one another, since the decisions they made were partly their own—and did not solely come from a Judge’s ruling. The chances for post-litigation also go down when parties mediate their divorce case.

The New Rule might end up being beneficial to many couples going through a divorce; couples who end mutually happy with the outcome of their case, who would otherwise not have chosen to mediate, had they not been required.