Making the decision to file for divorce is tough and oftentimes presents many questions for both spouses. It is a common misconception to believe that the only way to divorce your spouse is through litigation. While this may be the best option for some families, other families may be better suited utilizing an alternative dispute resolution technique such as mediation. While not for everyone, mediation is a good cost-saving tool that provides privacy and control to families. While mediation is an appealing route for many divorcing couples, it commonly presents a multitude of questions: Do I need an attorney? Can my spouse and I retain the same attorney for mediation? Will I obtain a divorce in mediation.
What is Mediation?
Mediation is an alternative dispute resolution technique in which parties are assisted by a neutral third-party mediator in coming to an agreement. Each party is encouraged to actively participate in the mediation process to ensure the parties reach an agreement that accommodates their unique situation. The mediator is without decision-making authority, but can provide the parties with neutral, problem-solving suggestions to facilitate compromise and agreement.
Although mediation promotes compromise and expedites an agreement, parties cannot obtain a divorce in mediation.
Why You Need an Attorney:
Many potential clients are confused as to why obtaining an attorney is crucial even if they intend to mediate. To obtain a divorce, each party will have to retain their own separate attorney or represent themselves pro se, regardless of the decision to mediate. One attorney in Illinois is not permitted to represent both parties. This is because parties do not obtain a divorce in mediation, they simply reach an agreement. After mediation, the agreement the parties come to must be memorialized in a document and presented to the court to acquire a divorce.
Obtaining an attorney from the beginning of a case is vitally important to ensure a spouse’s rights are properly advocated for. An attorney can use their expertise in determining the specific needs of the family and recognize if their case would benefit from mediation. If so, an attorney can advocate for their client’s individualized needs during mediation and assist in executing the final documents.
Extremely low conflict couples may wish to attend mediation without their attorneys. If the case involves substantial assets, complex issues or one spouse is not comfortable in the process, it is recommended an attorney attend with their client. Attending mediation with or without counsel is a personal decision, however, an attorney will still be required to draft and enter an agreement in court to effectively obtain a divorce.
Bottom Line:
Approaching a divorce can be intimidating and confusing. The bottom line is that each party needs an attorney to obtain a divorce. Retaining an attorney is necessary even when parties plan to attend mediation. An attorney can assist in determining if mediation is the right choice, and if so, drafting and presenting the final agreement to the court to finalize a divorce. Be your own advocate and talk to an attorney to ensure you have all the tools necessary to obtain an equitable and timely divorce. Knowledge is power, and obtaining more information will put parties in the best possible position for success!
Morgan L. Stogsdill ; Partner
