FAQ's - Legal Aspects of Mediation*

I heard that anyone disputing about custody and/or visitation is now required to go to mediation. Is that true?

Yes. As of January, 2007, parties involved in a dispute over custody or visitation in the state of Illinois must go through mediation (with some exceptions for domestic violence) to attempt resolving non-financial disputes in a non-adversarial manner. There is also a new 4 hour parenting education requirement covering the issues of custody and visitation and the impact for children. You can find information regarding these new statutes by clicking on this link: Illinois child custody statutes.

The person with whom I am disputing has an attorney who has offered to mediate. Shouldn't we just have him or her mediate instead of paying for someone else?

You can go to any mediator you choose, including attorney-mediators. However, if the other party has already hired an attorney who is then offering to mediate your case, NMS suggests you proceed cautiously. If an attorney is already representing one party, his or her neutrality as a mediator may be questionable. On the other hand, there are many excellent attorney-mediators whose primary role may be as a mediator. When you are considering hiring an attorney, you should be clear about your needs and about the role you want the attorney to play.

Unless an attorney-mediator has been hired jointly as an attorney by both parties and has a consistent and balanced past and present relationship with both parties, attorney-mediators should be functioning in either one role or the other (either as an attorney or as a mediator) but not both.

Sometimes opposing attorneys will sit down with each other and their clients to try and "mediate" some sort of solution. Technically speaking, this is actually more accurately known as a "negotiation" unless a neutral third-party such as mediator is also present.

I have an attorney who is also a mediator, why can't he or she mediate?

You can go to any mediator you choose, including attorney-mediators. However, even if the person with whom you are in conflict suggests using your attorney as a mediator, I would proceed cautiously or consider hiring a mediator who represents neither of you. If your attorney is "mediating" between you and the other party, chances are he or she is really negotiating on your behalf (after all, that's why you've hired an attorney) and the other party won't like that. The "mediation" (under the circumstances more accurately a "negotiation") would likely break-down and/or the other person might have second-thoughts about any agreements made, possibly leading to future conflict and/or litigation.

Can I consult with an attorney before, during, or after mediation?

It is your right to consult with an attorney at any point in the mediation process and NMS encourages this. Individuals with divorce and/or child custody and visitation disputes are particularly encouraged to obtain an attorney. However, in order for mediation to be successful, parties must feel free to be forthcoming with relevant information without the fear that that information will be used against them in the future. If the mediator determines the mediation process is being used for something other than resolving the dispute, she will terminate the mediation immediately.

Also, NMS cannot provide legal advice to anyone at any time. If you have legal questions, the mediator will refer you to your attorney, or if you don't have an attorney, we will strongly suggest that you obtain one. If you reach an agreement in mediation, NMS may write that agreement up for you as a mediation agreement only. You must seek the assistance of an attorney and/or the courts to turn that agreement into a legal document.

Can my attorney attend mediation with me?

Yes.  In Illinois, clients are allowed to have attorneys present with them during mediation.  Mediation is a voluntary process, however, and if one of the parties does not want the other party's attorney present during mediation, and therefore refuses to participate, mediation cannot take place.  Attorneys are usually not present during divorce, custody & visitation disputes.

Let's say we reach an agreement in mediation.  Then what happens?  Is it binding?

If you reach an agreement in mediation it will not be legally binding unless you file it in court.  For community disputes oftentimes a verbal or written agreement is sufficient for parties to abide by the terms.  Divorce and custody agreements need to be filed in court either by an attorney or Pro Se (self-representation).  Some attorneys offer unbundled services where they will file the appropriate paperwork while allowing clients to reach agreements on their own or through mediation.  While Noah Mediation Services can assist you in drafting an agreement, there is no circumstance under which we can file any legal paperwork on your behalf.

Isn't mediation really just the Unauthorized Practice of Law?

No.  In 2002 the American Bar Association Section of Dispute Resolution issued a notice clearly stating that mediation IS NOT the Unauthorized Practice of Law.   It reads in part: "Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement.  Such assistance does not constitute the practice of law.  The parties to the mediation are not represented by the mediator."  Click here to read the full notice.


*The information provided is not intended as legal advice and shall not be construed as such.