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.