Mediation of Custody & Visitation Issues
Mediation is a chance for parents to discuss how they will take care
of their children after they divorce or separate. The ultimate goal of
mediation is to help parents reach an agreement about how to care for
their children. An agreement both parties can live with will not necessarily
mean both parties are 100% happy. During mediation, parents can work toward:
- Reaching an agreement
that is in the best interests of their children;
- Learning to communicate
and cooperate with regard to their children;
- Benefitting the
children by reducing conflict and stress;
- Reducing the time
it takes to get matters resolved during a divorce or separation;
- Retaining control
over decisions about their children;
- Learning how to
handle the problems that will occur after the separation.
The alternative to
mediation is a judge-made decision. It is difficult to predict what a
judge will decide. Mediation is a chance for you to find solutions that
are right for your children.
The mediator will
not tell either parent what they should do and will not take sides. Also,
keep in mind what mediation is not. Mediation is not therapy, couple's
counseling, nor an attempt to reconcile the parents' relationship. Simply
put, mediation is the chance for parents to decide important decisions
in a way that will best benefit their children.
property issues be discussed?
Mediation may also be used to resolve issues related to the property.
Talk with your attorney before coming to mediation.
does the court require mediation?
A judge does not know you or your children as well as you do and cannot
make as good a decision about your children as you can. Studies show that
some of the benefits of mediation are:
- Parties better
comply with agreements they work out together;
- Parties do not
have to come back to court as often after the divorce;
- Parties can save
money and time by taking control of their decisions.
do I prepare for mediation?
It is important to keep an open mind and a positive attitude about
the mediation process. Some things to keep in mind are:
- What your children
- What is best for
- What are you willing
to do to see that your children's needs are met;
- Willingness to
listen, think of many options, and consider which options best meet
your children's needs.
Access a PDF file
of the Preparing
for Family Mediation form.
If there has been
a history of physical or emotional abuse, or if you are currently concerned
for your physical health and safety, inform your lawyer and the mediator.
Mediation should be a process in which both parties feel safe and comfortable.
You may not be able to reach a fair agreement if you do not notify your
lawyer or the mediator of any past or current issues of physical or emotional
will attend mediation sessions?
The children's parents will meet together with the mediator. The mediator
may meet with each parent individually as well. The children will not
attend nor should anyone else including current girlfriends or boyfriends,
or other family members. If other people need to attend in order to reach
a fair agreement, you should discuss this with the mediator at the first
mediation session. Generally, the attorneys do not attend. The mediator
will determine who attends.
long will mediation take?
The time in mediation may vary from one to ten hours, depending on
the issues to be discussed. Ask the mediator how long the first session
will be discussed?
Be prepared to discuss how you will decide:
- Children's health,
education, religious training,
- Where they will
reside and when,
- Activities, discipline
- Any additional
If mediating property
issues, be prepared to discuss:
- Health and life
- Taxes and
- Retirement programs.
Talk with your attorney
before coming to mediation.
The mediator will treat these sessions as confidential, with certain
exceptions. Those exceptions will be explained to you prior to starting
the mediation. The Uniform Mediation Act makes mediation confidential
with certain exceptions.
to find a mediator?
To locate a family mediator who meets the qualifications of the First
Judicial Circuit, ask the circuit clerk of the county for the folder listing
mediators or click here for a list
of court approved mediators. In the circuit clerk's listing, mediators
indicate their fees, their background and training. Family mediators are
social workers, counselors, attorneys and others who have been trained
to be family mediators.
If you cannot afford
a mediator, ask your attorney to ask the court to refer you to a pro
if more legal advice is needed?
Be sure to talk with your attorney before coming to mediation.
Your attorney should
be available to explain your legal rights and obligations, review any
agreements you reach before they are final, and answer any questions you
may have. Usually, attorneys are not involved during the actual mediation
session. But you should talk with your attorney before and after mediation.
The court will also
review and must approve any final agreement reached to be sure it is in
the best interests of the children.
if no agreement is reached?
It is OK to reach some agreements during mediation and have the court
decide other issues. If you do not reach a complete agreement on all issues,
your lawyers will try to negotiate. If they do not resolve the issues,
you will go to court. The judge will then decide how your children will
Keep in mind, however,
that mediation is a unique opportunity for you to decide what is best
for your children and is often preferable to a judge's decision.
I mediate and avoid going to court?
No. Only a court can grant you a divorce and agreements regarding
your children must have court approval. You must file a petition for divorce
with the court and eventually get a decree granting the divorce and resolving
matters relating to property and children. There are several ways to reach
the final decree. One way is to mediate -- the parties will come to mediation
and work out the terms of parenting their children or dividing up the
property. Another way is for the parties to agree on their own. A third
way is for the lawyers to work it out after consulting with you. The final
way is for the court to decide.
I mediate and not get a lawyer?
We do not recommend this. Issues regarding your children, division
of your property, including retirement benefits, are too important to
decide without getting professional legal assistance. Mediation can help
save lawyers' fees if you are able to resolve the issues without having
to present evidence in court.
We recommend that
you retain a lawyer, have the lawyer file the necessary pleadings in court,
ask the lawyer to advise you about your rights and responsibilities and
prepare you for mediation. Then you can use mediation to try to reach
agreements, once you are informed of your legal rights and responsibilities.
If you do reach an
agreement, your lawyer will review the agreement with you to be sure it
is what you wanted. The lawyer will also put the agreement in final form
for the court to review and approve. If you do not reach an agreement,
the lawyer can help you prepare for the next step.
am a lawyer. What advice is there for lawyers on how to prepare for mediation?
- Read a November
2002 ISBA Journal article entitled, "A
Lawyer's Guide to Preparing Clients for Family Law Mediation."
- Also see an August
2000 ISBA Journal article entitled, "Preparing Your Clients for
Parenting and Financial Mediation."
- Also see Cooley's
Mediation Advocacy handbook published by NITA.
- Read the applicable
court rules and statutes.
- Talk with other
lawyers who have been in a mediation of a similar type.
there a Mediation Referral Form I can use?
Basic information is needed by the mediator prior to the first session.
Once the form is displayed, you can print it from your computer, complete
it, and provide it to the mediator to whom the referral is being made.
Is there a Court Order for Family Mediation
form I can use?
You may use this proposed order, with any needed adaptations,
for court orders regarding mediation. This form has been in use since
1993 and may need updating.
Information for Parents in a Divorce
When divorcing, parents face the difficult task of explaining divorce
to children and helping them adjust. Another difficult task is designing
a schedule so that children maintain a healthy relationship with each
parent. Listed below are several helpful resources.