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A Mediator’s Perspective from NSL’s Ellen Barron Feldman

May 26, 2017 | Divorce, Mediation, News

By Ellen Barron Feldman, Attorney and Divorce Mediator
When potential clients telephone me for the first time, they often assume that, because I am an attorney, I will be able to mediate their divorce and draft the necessary documents to take them to court to finalize the divorce process.  When I explain that I am always neutral in the mediation process and cannot also act as attorney for one of the parties, they continue to ask me questions and ultimately decide that mediation may still a good option for them.  Mediation makes the divorce process less expensive and more efficient, as well as saving time and helping the couple create a new parenting relationship going forward.
Traditional divorce mediation provides the opportunity for resolution of all of the required issues under the Illinois Marriage and Dissolution of Marriage Act in a neutral setting, with the assistance of an objective, neutral and impartial mediator or two.  With mediation, spouses are more inclined to honor their obligations than if a judge imposed a parenting plan, division of assets and financial commitments on the couple.  Couples who mediate are less likely to experience post-decree conflict as new issues arise, leading to fewer court appearances and reduced attorneys’ fees.
Mediation helps parents focus on the best interests of their children when creating shared parenting responsibility, how to divide parenting time during the week and on weekends and allocating holidays.  Mediation facilitates working together rather than hiring attorneys which often results in the couple becoming more adversarial in the process.  Communication has often broken down, leading the couple to divorce in the first place.  Sitting in a room with a mediator often lends itself to new and improved ways to talk to each other.  Texting, emailing or sitting down for coffee to discuss children’s activities, school and health may be things that the couple has not done in quite some time.  Hiring attorneys often makes the couple more adversarial at a time when they need to focus on their children to make decisions that will be incorporated into a Joint Parenting Agreement and remain in place until the youngest child is 18 or graduates from high school.
Though I am an attorney, with fifteen years of commercial litigation experience, in the mediation process, I am always neutral.  Having acted as the neutral party helping couples make decisions about parenting time, holidays and financial arrangements for their children, I cannot at the end of the process advocate for one party or the other.  That would present a conflict of interest for me to draft the documents relating to the children or financial settlement looking out for one party’s best interests over the other.  Though it may make sense for an attorney to be able to draft documents which memorialize agreements already made in mediation, the law does not work that way in Illinois.  Parties need to hire an attorney to look at the issues from his or her perspective.  That being said, many of our couples decide that one of them will hire the attorney and the other will go pro se or for oneself and handle the final prove-up without representation by an attorney.
As an attorney, I have the perspective and experience, and credibility, to guide the couple through the mediation process knowing that litigation is often not beneficial to either party.  If the couple can save money in the process for retirement or college, everyone wins in the end.