Saturday, March 15, 2014

You've been ordered to mediation, what now?

It is required in the State of Illinois that parties arguing about custody and visitation participate in mediation. Ultimately, the success of mediation depends upon the willingness of both parties to cooperate and put the child first.

Prior to mediation, please think about what issues you might be willing to come to compromise on with the other party.  You should consider legal and residential custody and visitation schedule.  Consider what type of legal and residential custody situation you are in currently.  If you currently have sole custody, you will want to think about whether or not you are willing to give up sole custody.  Sole custody means that parent makes all of the decisions and does not need permission or agreement from the other parent.  The parents are encouraged to discuss matters with each other, but agreement regarding the major decisions is not required.

Joint legal custody to both parents with residential custody to one parent essentially means that the two of you must be able to communicate and cooperate while raising the child.  You both have the ability and the right to make decisions for the child.  Major decisions regarding healthcare, school, and religion must be agreed upon by both of you or you could end up back in court.  Each parent makes the day to day decisions on his/her own when the child is in that parent’s custody.

Consider both of these types of custody carefully before you make any agreements at mediation.  It is important that you not take this lightly because custody decisions are final for at least two years.  After that time period, a parent is able to bring a petition to modify.  However, within that two year time frame, a parent is only able to ask for a modification if the child is seriously endangered or there is a substantial change in circumstances.  This is a very high standard and it is a difficult position to win.

It is important to understand the mediation process so it can be used successfully. Listed below are some warnings, suggestions, and information:

  1. If you have been the victim of physical abuse, you may not be a good candidate for mediation.  If this is the case, be sure to share this information with your lawyer or, if pro se, the Judge.

  1. Mediation can be difficult. Prepare yourself for potentially two hours of discussion.  The court requires at least four hours of mediation, but mediators typically meet for no more than two hours at a time.

  1. Be prepared to become angry. It will happen. The key is to keep it under control and refuse to become victimized by it. Try to remain calm and continually think about what is in the best interest of your child.

  1. Remain patient. Threats to leave the mediation are counterproductive.

  1. Refrain from attacking the mediator or the other party during the mediation.

  1. Be creative. Be willing to look at ways to satisfy the other party’s needs. At this point, the case is totally within your control.  The two of you have plenty of leeway to make your own agreement.  There is no real standard that you need to adopt as your own.

  1. Be attentive. Negotiation can be extremely difficult to track. You must be very attentive to the proceedings.

  1. Be thorough. Read the final agreement carefully. You may sign the draft agreement, but nothing becomes a final order until it is entered by the court.  If there is something that was not covered to your satisfaction, make sure the mediator knows and makes note of that on your draft agreement.

The mediation process creates pressure and fatigue. In one sense, this is good because it simulates the pressure and fatigue that arise at trial, so it facilitates settlement. On the other hand, your agreement must be knowingly and intelligently done, and of your own free will. So, if you find yourself getting to the point of feeling unwanted pressure or fatigue, let the mediator know. She will arrange for a break, something to eat or drink, or an end to the session. 

Above all else, remain open minded prior to and during the mediation.  Be creative regarding solutions to the problems.  Feel free to call your lawyer prior to (or even during) the mediation if you would like to discuss further any ideas, questions, or thoughts you may have regarding the mediation.

Best of luck during your mediation and, remember, this is your chance to settle matters to your satisfaction--without the Judge and lawyers--just you and the other parent.  It's in you and your child's best interest to make the most of this chance.

Tuesday, March 4, 2014

Practical advice....

I've been having a hard time updating the blog frequently.  So, here is a brief post to get me back into the swing of things.

At this point we've made it through the entire holiday season.  I really hope everyone was able to get through the holidays and cooperate in regards to the kids.  The most important thing is to do what is best for the kids and make them feel as though almost nothing has changed.  The easiest way to do this is to be willing to change your plans and be flexible so the kids benefit.  For example--is it really that important that you celebrate Thanksgiving on Thanksgiving Day?  Or, Christmas on Christmas Day?  Isn't it more important that you spend time with your child?  I've discovered through my own experiences that the kids don't seem to care what day the holiday is on....especially when you act like it's no big deal.

It seems like everyone waits until the last minute to plan for visitation--be it during the holidays or a long weekend, etc.  Communication is key here, folks.  You should start planning your holiday visitation arrangements AT LEAST by the beginning of October.  You may not like talking to the other party, but it is so much easier to get the plans laid out.  Then, it's done and it's one less thing to worry about.

I've posted about DCFS before and my feelings haven't changed on that front.  I'm mentioning them again because I want to emphasize how important it is for people to have a lawyer during the process of dealing with DCFS.  Whether actual charges are filed or you just have to deal with DCFS and an indicated finding, you need a lawyer on your side.  The lawyer is able to guide you and help keep DCFS in line and prevent DCFS from rolling over you and your rights.

Another issue I'd like to cover briefly is that of paying your lawyer.  I don't want to preach, but your lawyer.  You go to work and do your job and expect to collect a paycheck.  A lawyer is the same way.  I feel that you are primarily paying your lawyer for our knowledge base and our service to you.  We have to eat and put a roof over our heads as well.  I don't expect you to work for free and you shouldn't expect your lawyer to work for free.  That's all I'll say.  I don't want to be all preachy.

Remember, the only real answer we can give you regarding your case is "it depends."  We can talk about best case scenario and worst case scenario.  Some judges are predictable enough that we can even predict what they will do.  However, there is never a guarantee.  If someone is making you a guarantee as to how your case will turn out, be very wary and ask more questions.  You might want to consult with another attorney as well, just to be sure.  You want to hire someone who will be honest with you and who wants to help you resolve your problems in a way that is most cost effective for you.  You don't want someone who will just run up the bill with no consideration to your financial situation.

That's it for today.  I will try to post at least once a week and begin to address some of the most commonly asked questions that I receive.  If you have specific questions, feel free to email them to me and I will address them in a post.