Should I Use Attorney-Assisted Mediation in My Divorce?

 Posted on March 31, 2022 in Divorce

Many approaches can be taken during the divorce process. While some level of conflict is to be expected between divorcing spouses, this does not necessarily mean that dissolving a marriage will require long, drawn-out legal proceedings in court. In many cases, spouses can benefit by approaching divorce cooperatively, and this can make the process easier for their children or other family members as well. Mediation can provide an effective way of doing so, and by working together to create a divorce settlement, spouses can find solutions that will benefit both of them, allow them to complete their divorce more quickly and efficiently, and ensure that they will be able to move forward with their lives once the divorce process is complete.

In some cases, attorney-assisted mediation may be a good solution that will allow spouses to work out their differences while making sure their rights and interests will be protected. The attorneys of Weiss-Kunz & Oliver, LLC work with our clients to help them determine how to proceed with the mediation process. We advise divorcing spouses on the level of attorney involvement that may be appropriate in their situation while helping them understand the best steps they can take to resolve their disputes and complete the process of dissolving their marriage. Our goal is to help our clients reach a positive resolution that they can be happy with while avoiding conflict as much as possible and ensuring that they will be in a good position as they begin the next stage of their lives.

What Is Attorney-Assisted Mediation?

Traditionally, mediation will only involve the parties who need to settle a legal dispute and a neutral mediator who guides them through discussions and helps them make decisions about how to resolve the outstanding issues in their case. This can be a good solution in cases where the parties are willing to cooperate to reach mutually-beneficial agreements. Because divorce mediators are often attorneys or have knowledge of divorce laws, they can advise spouses of their rights and explain how the decisions they make will affect them. By working together along with the mediator, spouses can often negotiate a workable divorce settlement, and once they have created an agreed settlement, they will be able to attend a hearing and complete the process of legally dissolving their marriage.

In some cases, one or both parties may ask to have legal representation present during the mediation process. If a person is unsure about the best ways to approach negotiations, or if they are concerned about their ability to advocate for their rights and interests, they may wish to have their attorney be a part of the negotiations. This may provide the parties with reassurance that legal issues will be addressed correctly during their discussions and that they will have an advocate who will stand up for them and ensure that they do not make decisions without fully considering how they will be affected in the years to come.

Attorney-assisted mediation can take multiple forms depending on the level of involvement that the parties’ lawyers will have in the process. In some cases, involvement may be limited to the parties discussing issues with their respective attorneys before and after mediation sessions. This will allow them to identify important issues and determine the best approach to take during discussions. A lawyer can also help their client gather the necessary documents or other information that may play a role in decisions about the division of marital property or other financial issues. By ensuring that a person will be fully prepared to negotiate on the issues addressed during mediation, while also reviewing discussions that have already taken place and advising a person on whether certain decisions may need to be modified, an attorney can work closely with their client during the mediation process to help them reach favorable decisions.

Spouses may choose to have their attorneys directly participate in mediation sessions, acting as legal advisors during discussions and stepping in when necessary to advocate on their clients’ behalf. This can help the parties reach decisions that will be legally sound while ensuring that each spouse’s rights will be protected during discussions. Because attorneys will have experience arguing these types of cases in court, they may be able to provide insight on how a judge may make certain types of decisions. This may help the parties negotiate agreements that follow the law while ensuring that both spouses understand when they may be able to make concessions and reach compromises on certain issues.

As with traditional mediation, the goal of attorney-assisted mediation will be to create a divorce settlement that both parties fully agree on. By having lawyers more closely involved in the mediation process, spouses can make sure their settlement will fully address all legal issues that must be decided before their marriage can be dissolved. Attorneys can review a settlement to ensure that it meets all legal requirements and contains the proper language that will help avoid additional legal disputes in the future. A divorce settlement created through mediation will only be legally binding if both spouses are in full agreement, and attorneys can ensure that their clients are fully satisfied with the decisions made during this process.

Benefits and Drawbacks of Attorney-Assisted Mediation

Mediation is meant to be a cooperative, non-adversarial process. However, there are some situations where a spouse may be concerned about their ability to communicate with their former partner and stand up for themselves during negotiations. In these cases, attorney-assisted mediation can help ensure that these spouses will be able to approach the mediation process effectively. 

Representation by an attorney during mediation may be beneficial for a person who struggles to communicate effectively. For example, if a person struggles with anxiety, they may “shut down” during discussions that address important aspects of their lives, or a person who has been diagnosed with ADHD may struggle to concentrate and adequately consider the issues being discussed. Being unable to fully participate in negotiations can affect a person’s ability to reach effective agreements and advocate for their own interests. With an attorney present, a person can make sure they will have a voice in divorce settlement negotiations while fully understanding the ramifications of the decisions they make.

In situations where one party has engaged in abuse or acted in a controlling manner during a couple’s marriage, the other party may need a legal advocate during mediation. In these cases, the parties may have become used to a pattern of behavior in which one spouse orders the other around and expects them to comply with their demands. This can make it difficult for a person to stand up for themselves during negotiations. Attorney-assisted mediation can be beneficial in these cases, and it will ensure that a spouse will not be bullied or coerced into going along with what the other party wants. The parties’ lawyers can advocate for their clients’ interests in these situations and ensure that the decisions made will follow the applicable laws rather than the desires of one party.

While attorney-assisted mediation may provide benefits in certain situations, the involvement of lawyers in negotiations may make it more difficult to reach agreements. The outstanding issues may take longer to resolve, and discussions may become more adversarial, affecting the parties’ ability to cooperate and work together to find effective solutions. The mediation process will also be more expensive for both parties, since in addition to paying for the services of a mediator, they will also be required to pay attorney’s fees for the time spend discussing issues during mediation, as well as preparation for mediation sessions and any other services a lawyer provides, such as drafting and reviewing a settlement agreement. Before agreeing to attorney-assisted mediation, spouses may want to consider whether they may be able to resolve their issues through traditional mediation or whether other options may be preferable, such as pursuing a collaborative divorce.

What Happens if the Mediation Process Fails?

Ideally, spouses will be able to work together throughout the mediation process to create a divorce settlement that fully addresses all of the outstanding issues in their case. However, there are some situations where discussions may reach an impasse, and certain issues may remain unresolved. If one spouse will not compromise on certain issues, such as by refusing to agree to a situation where parents will share equal parenting time, the parties will need to determine their options for completing their divorce.

In many cases, spouses will be able to create a partial divorce settlement through mediation while pursuing other options for resolving the outstanding issues in their divorce. If they were able to reach agreements on certain matters, they may inform the judge in their case of these decisions while also noting the remaining issues that will need to be resolved. For example, a couple may have reached decisions about how to address child custody, but they may have been unable to agree on how to divide certain types of property or whether one spouse will pay spousal support to the other. If necessary, they can then proceed to divorce litigation and ask the judge to make the final ruling on the issues that have not been decided. 

Even if a couple was unable to resolve certain issues through mediation, they will be encouraged to reach a settlement before proceeding to litigation. While this may not be easy, especially if a couple was unable to reach agreements through mediation, outside experts such as child custody evaluators or financial advisors may be able to help spouses determine how to resolve certain issues. Before a case proceeds to litigation, a pre-trial conference will usually be held in which the parties will inform the judge of the outstanding issues that need to be resolved. At this conference, the judge may provide an indication of how they may rule on these issues, which may help the parties reach agreements and finalize a settlement without the need for a trial. 

Contact Our DuPage County Divorce Mediation Lawyers

At Weiss-Kunz & Oliver, LLC, we can provide legal representation at every stage of the divorce process. We can help you determine whether mediation will be an effective method of resolving your disputes, and if necessary, we can participate in attorney-assisted mediation and advocate on your behalf as you work to reach a divorce settlement. We will make sure you understand how the divorce laws apply to your unique situation, and we will advise you on the best ways you can protect your rights and find solutions that will allow you to end your marriage and move on with your life. If you are unable to reach agreements through mediation, or if you have outstanding issues that will need to be resolved, we are prepared to advocate for you in court or when negotiating with your spouse and their lawyer. Whether your divorce is amicable or contested, we can provide the legal help you need throughout the entire process. Contact our Elmhurst divorce attorneys today by calling 312-605-4041 and arranging a confidential consultation to discuss your legal issues and the best strategies for success in your case.

Sources:

https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/dispute_resolution/role_of_attorney_in_mediation_process.pdf

https://www.chicagolawbulletin.com/archives/2014/07/02/jessica-bank-interlandi-forum-07

https://www.brides.com/what-is-divorce-mediation-and-how-does-it-work-1103259