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The Role of the Attorney in the Mediation Process by Ellen Barron Feldman

Oct 3, 2013 | Divorce, Family Law, Mediation, News

What is Divorce Mediation?

Divorce mediation is a process in which a mediator facilitates communication and negotiation between the parties to assist them in reaching voluntary agreements (Uniform Mediation Act). A mediator’s role is to be neutral and impartial, the process is confidential and the mediator works with the couple to facilitate resolution of the issues. We discuss all of the issues that need to be resolved to get divorced in the State of Illinois.
My partner worked in the Lake County court system as a probation officer for many years before starting his private mediation practice, and I practiced commercial litigation for 15 years, and currently volunteer in the 19th Judicial Circuit Family Mediation program as a mediator for pro se litigants. Based on our experience, we have a good sense of how judges will view parenting time, holiday schedule and division of marital assets, and can guide the couple accordingly. We will not allow a couple to make agreements which will not be viewed as fair and equitable by a judge.
In a comfortable environment that is much more amicable than a court room setting, we discuss the issues and help the couple come to agreements. We assist them in filling out the financial affidavit for their county and collecting all documents the court will require them to have when they present their divorce case. Instead of formal discovery, which is expensive in a litigated divorce, the required discovery is informal but still completed.

The Mediator’s Role if Attorneys Are Not Involved

A mediator’s responsibility differs, depending on the stage of the divorce process and whether the couple has already hired attorneys to represent them in their divorce. Many of our clients come to us without having consulted an attorney. Finances preclude their hiring an attorney, but they want to get divorced. They believe that they can get divorced with a mediator and complete the process. Once we explain that we do not recommend that they get divorced in the state of Illinois without an attorney but that mediation makes the process much less expensive, they are usually willing to meet with my partner and me for a consultation. Co-mediation gives them many advantages in the process and facilitates communication and focus on the best interests of the children, our goals in the mediation process. We always suggest that a couple consult with an attorney before going through mediation, but we do not require them to hire attorneys before we will take them as clients.

The Mediator’s Role if Attorneys are Involved

The mediator’s role is to protect both parties. We must stay neutral. We evaluate and make a determination that each party can advocate for himself in the process and articulate positions clearly. That is really the threshold question from our perspective as to whether mediation is an appropriate process for a couple. We make sure that neither party is intimidated by having a spouse in the room when there are no attorneys to speak for them. We are always willing to speak to attorneys who are involved in the case but cannot promise that a client will make agreements his attorney approves. We can guide a discussion in mediation about a topic but do not give legal advice. We do not control whether a decision is reached that may not be best for a client from an attorney’s perspective but would be considered equitable by a judge. When children are involved, our role is to focus on the best interests of the children, not either spouse, to guide the parties through mediation.

The Attorney’s Role in a Mediated Case

If couples mediate the parenting piece, including custody and a visitation schedule, as well as finances, they do not need attorneys to litigate their divorce. Rather, they require an attorney who will respect and endorse the agreements made in mediation while still looking out for their best interests. We send clients with the agreements made in mediation, called a Memorandum of Understanding, to who we call “mediation-friendly attorneys” to draft a Joint Parenting Agreement and Marital Settlement Agreement mirroring the agreements made by the couple. The attorney’s role is to protect the client by making sure agreements are equitable, draft required documents, and take them to court one time to prove-up the divorce to a judge. There is no formal discovery and no depositions or trial, and the cost is much lower than the cost of a litigated divorce. The couple may or may not have consulted with attorneys during mediation, but at this point, the attorney’s role is to effectuate the agreements made by the couple in mediation.

The Attorney’s Role in a Litigated Divorce Case

An attorney has the responsibility to zealously represent, protect and pursue a client’s legitimate interests, within the bounds of the law. The attorney has advised his or her client on the best-case scenario for a divorce, but is only looking at the case from the client’s perspective. When attorneys refer their clients to mediation, or a judge orders them to mediate, the process takes on a different slant. The clients are coming into mediation with a promise by their attorneys that things will go a certain way. That may or not be what the client really wants and usually will not be what the spouse wants in a divorce. The clients will be at different ends of the spectrum instead of focused on meeting in the middle on issues, two very different viewpoints, as opposed to clients who come to mediation without consulting attorneys first.
As mediators, when a couple is sent by attorneys, we have to respect the wishes of the attorney if they are only interested in our mediation of certain issues in the case. For example, if they want a custody plan and visitation schedule, we try not to delve into the financial issues. However, visitation is sometimes wrapped into child support as a spouse may try to have more time with the children because he believes that may minimize his child support obligation.


Mediation is a cost-effective way to resolve all or some of the issues in a divorce whether or not the couple has hired attorneys. The mediator must be aware of the client’s goals, the attorney’s perspective if one or more have been hired and the mediator’s role as a neutral and impartial facilitator at all times.