What is mediation?

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.

Can property issues be discussed?
Mediation may also be used to resolve issues related to the property. Talk with your attorney before coming to mediation.

Why 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.

How 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 need; 
  • What is best for your children;
  • 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 abuse.

Who 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.

How 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.

What will be discussed?
Be prepared to discuss how you will decide:

  • Children's health, education, religious training,
  • Where they will reside and when,
  • Transportation of children,
  • Activities, discipline and
  • Any additional day-to-day concerns.

If mediating property issues, be prepared to discuss:

  • Debts,
  • Property,
  • Health and life insurance,
  • Taxes and
  • Retirement programs.

Talk with your attorney before coming to mediation.

Is mediation confidential?
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.

How 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 bono mediator.

What 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.

What 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 be parented.

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.

Can 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.

Can 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.

I 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.

    Is 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.

Helpful 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.

For Family Mediation Forms click here