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The Role of the Attorney in the Mediation Process

By Ellen Barron Feldman, Attorney and Divorce Mediator

Though I am a Cook County attorney, I mediate exclusively. Potential clients assume that I will be able to mediate their divorce, draft the necessary documents and take them to court. Divorce mediation often occurs before the divorcing couple has hired or even consulted a divorce attorney. From our perspective, that brings an added benefit to the divorce mediation process because the parties are not yet adversarial. To the contrary, they are assuming, even though they do not want to stay married, they are amicable and want the same things for their children and, hopefully, how they want to divide their assets and debts. Sometimes the couple has consulted with divorce attorneys, so they understand what might happen if they go to court, but they want to remain friendly in the process. Since I am an attorney, I always tell a prospective client that they should ask an attorney what might happen if they go to court since, as a mediator, I am not supposed to give legal advice.

As an attorney, I am on the Lake County and Cook County lists of mediators. This means attorneys standing in front of a judge in the 19th Judicial Circuit or any of the Cook County courthouses may choose me off the list of appointed divorce mediators for the county or the judge may select me and order the parties to come to us for mediation. If divorce attorneys have us appointed as the mediator, I take direction from the divorce attorneys regarding specific issues they would like addressed in mediation. Perhaps they just want us to address the parenting issues, holidays and a parenting schedule but want to reserve the financial issues for the attorneys to discuss and resolve. I will try not to step on the divorce attorneys' toes or interfere with their direction on specific issues they would like us to handle. Once we have completed mediating the issues we are asked to mediate, we draft a Memorandum of Understanding outlining the agreements made in divorce mediation and send it to the divorce attorneys to finalize settlement of the remaining issues and take the parties to court to prove up the divorce.

Just as I won't interfere with the divorce attorneys who have sent me a case, whether the clients are coming to me voluntarily or by court order, I hope that divorce attorneys will respect the divorce mediation process once they have trusted us to handle the divorce mediation for their clients. Divorce mediation provides the opportunity for resolution of the issues required to be resolved under the Illinois Marriage and Dissolution of Marriage Act in a neutral setting, with the assistance of an objective, impartial divorce mediator. If the divorce attorneys do not respect the divorce mediation process, and try to unravel the agreements made in divorce mediation, that undermines the credibility of the process. Divorce mediation is hard work and takes courage to stand up to one's spouse, homework to think about issues and negotiate outcome, and advocate for oneself in the divorce mediation process. If divorce attorneys have trusted us to mediate for their clients, and we send them a case to finalize and take to court, we hope they will defer to our judgment and incorporate the agreements made in divorce mediation into the divorce pleadings.

We always tell our clients that we will offer what we call "mediation-friendly" divorce attorneys and, if they are finding a divorce attorney on their own, they should ask if the divorce attorney respects the divorce mediation process. That will make things go more smoothly in divorce mediation and afterwards in the court process. The divorce attorney's role is critical to supporting the divorce mediation process.

When divorce attorneys and divorce mediators work together to support their clients, the process can be smooth and efficient. We are available for a consultation or initial meeting to see if we might help you through this difficult process.

Ellen Barron Feldman completed Family and Divorce Mediation Training through DePaul University Center for Conflict Resolution in May, 2005 and Advanced Family Mediation in June, 2005. She has been appointed to the 19th Judicial Circuit Family Mediation Program list of court-approved mediators for Lake County, Illinois.

She can be contacted by phone at (312)524-5829 or
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