As a highly skilled mediator and family lawyer, Matthew R. Majernik can help divorcing couples with creating an agreement that works for both parties, without heading to court. In this podcast, Matthew provides insight into the mediation process, and how those seeking separation can save time and money.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Matthew R. Majernik Associate Attorney and Mediator at Allison & Mosby-Scott
Working as a mediator Matthew has been successful in helping his clients avoid the time and expenses of divorce litigation. His work focuses on the areas of family law and estate planning, and has extensive experience in the areas of dissolution of marriage, custody, child support, and order of protection.
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Read the Transcript of this Podcast Below.
What is divorce mediation and how does it work?
Divorce mediation is a form of alternative dispute resolution where the parties two of divorce work with a neutral third party to reach an agreement to settle that divorce. The parties can mediate all issues that would be present in a divorce such as the allocation of parental responsibilities as well as all financial matters. Or the parties can mediate specific issues and leave other issues for their attorneys to negotiate or for the court to decide. The goal of mediation is to allow the parties to reach as many agreements as possible, once the mediation is complete the mediator will reduce the agreement of the parties to writing, the agreement may be reviewed by an attorney if the party has an attorney. If the mediated agreement accurately reflects the parties agreement then a judge will enter an order that makes the agreement binding.
What is the difference between mediation and arbitration?
Mediation of the allocation of parental responsibility, which includes decision-making and parenting time, is required for all parties divorcing in Illinois. If the parties of two in the divorce do not agree to attend mediation willingly then a court will order the parties to attend. Parties can also mediate financial issues by agreement, but generally, the court will not order financial mediation. Any agreement reached in mediation is not binding and the party could change their mind before the mediated agreement is entered by the court. Arbitration can also address the allocation of parental responsibilities and financial issues. Arbitration however is not mandatory and as such, a court will not order arbitration of either the allocation of parental responsibilities or financial issues, further unlike mediation, arbitration is typically binding.
Matt, is there more than one style of mediation, if so what are the differences?
Sure. The mediation process varies from mediator to mediator. Typically, mediation can occur with all the parties and the mediator discussing the issues jointly, this arrangement is referred to as conference mediation. Another arrangement is for a party and a mediator to discuss issues individually and for the mediator to then discuss that conversation with the other party individually, this arrangement is referred to as shuttle mediation.
What are the advantages of using mediation to settle a divorce case?
There are many advantages to mediation; mediation is generally faster and cheaper than litigation, mediation can typically be completed in a couple of weeks or a month. Litigation on the other hand typically takes months or even a year or more. Mediation can typically be completed far cheaper than litigation; on the high side mediation could cost around $1,500, on the low side mediation could cost around $500. The difference in cost depends on the issues mediated and the number of sessions. Mediation also allows the parties to fashion an agreement that is unique to them and takes into account their family dynamic, such an outcome may not be available through litigation.
How long does a typical mediation process take and how many sessions are generally required to reach an agreement?
Mediation can typically be completed in a couple of weeks or a month. The length of the mediation process will depend on how many issues are being mediated and the schedules of the party and the mediator. A session can be as short as a few minutes or as long as a few hours depending on the issues discussed and the progress that is being made. The number of sessions vary from case to case, some mediations are completed in one session, other mediations need multiple sessions. The average mediation typically has three sessions.
Is mediation more or less expensive than other forms of dispute resolution? How much does it typically cost?
Mediation is probably the least expensive form of alternative dispute resolution, on the high side mediation could cost around $1,500, on the low side mediation could cost around $500. The difference in cost depends on the issues mediated and the number of sessions.
Can you mediate specific issues without having to mediate the whole case?
Yes. In mediation, it is possible to mediate specific issues while other issues are left for a judge to decide. For example, the parties may mediate the allocation of parental responsibilities which deals with decision making and parenting time, but leave the financial issues for the court, such as who pays what in child support, whether maintenance, alimony or spousal support is paid and what is the division of the marital assets and debt. What is mediated and what is litigated will depend on each case.
What are the ethical guidelines of mediation, does the mediator remain objective or do they typically pick sides and advocate for one party?
Mediation is strictly confidential, as such, a mediator has the duty of confidentiality to the parties. If the mediation is unsuccessful, what is discussed in mediation cannot be presented in the future during litigation by the parties and the mediator cannot be called as a witness to testify. A mediator is to remain objective at all times, their job is to facilitate an agreement between the parties. A mediator does not pick sides and they do not advocate for either party.
Matt, what is co-mediation and when is it typically used?
Co-mediation is a mediation involving multiple mediators, usually two, who in some way may complement each other, whether by gender, personality, cultural, professional background or other ways in a manner that can improve the quality of both the mediation process and its outcome. Co-mediation may be popular in other jurisdictions, however, it is not typically utilized in McLean County or the other surrounding counties.
What can someone do to prepare for the divorce mediation process?
In order to best prepare for the divorce mediation process, a party is to gather and organize any documentation that helps support a particular issue or a claim. It is also helpful to think of a best-case scenario, a worst-case scenario, as well as areas where compromise is possible. If the party is also represented by an attorney during the mediation process it would make sense to contact and speak with that attorney to establish a game plan before beginning mediation.
Does mediation, arbitration, or litigation work best for complex divorce cases?
Mediation can resolve complex divorce cases provided the parties are able to agree on valuation issues and a fair allocation of assets. If that is not possible then litigation would be to determine the disputed values and what is an equitable allocation of the marital assets and debts. Arbitration without a prior agreement is not used in McLean County and the surrounding counties, however if for example, a prenuptial agreement between the parties required arbitration, then arbitration could be used to resolve those complex divorce issues.
Can you mediate a case where there are major power imbalances between the couple or where there has been domestic violence during a marriage?
Yes. Where there is an imbalance of power between the couples, the job of a good mediator is to balance out the parties and make sure that both parties have an opportunity to be heard. If this is successful then the likelihood of achieving a positive result in mediation is more likely. Regarding domestic violence issues, mediation is also still possible. Depending on the specifics of a case, shuttle mediation may be appropriate so as to avoid interaction between the parties. Also and again, depending on the case existing court orders may need to be modified to allow for mediation to occur if there’s a history of domestic violence.
If there’s information one spouse doesn’t want to share with the other, will the mediator keep that information confidential?
Yes. If there is specific information that a party does not want the mediator to share with another party, the person requesting the confidential information can ask the mediator for that information to remain between that specific party and the mediator. If such a request is made the mediator may only disclose the confidential information that they were told with the approval of the party who provided that confidential information.
Can you mediate a high net-worth divorce and are there any advantages of using mediation rather than litigation for high asset cases?
Yes. Mediation can be used in high net worth cases, it may however be prudent for high net worth individuals to obtain the assistance of other professionals, such as an attorney and accountant to assist in the mediation process. In the event the mediation is successful, that attorney or that accountant, who were used, would be able to help in completing the necessary documents in order to complete the divorce. In the event the mediation is unsuccessful, those same professionals could also be used for the litigation process.