Why Mediation During COVID-19 Makes Sense

We have all experienced the impact of the unprecedented public health pandemic, COVID-19, upon our families, local neighborhoods, and global communities. Now, more than ever, people who are considering divorce, who are in the midst of a current divorce matter, and/or who are attempting to resolve issues after the completion of their divorce should consider mediation during COVID-19 to be an important resource.

Mediation during COVID-19 may conserve time and costs, and allow for creative/productive legal solutions that minimize the need for judicial intervention regarding their financial and parenting issues.

Mediation is an alternative to litigation–dispute resolution. During mediation, a trained divorce and family law mediator acts as a third-party neutral professional who does not provide legal advice to either spouse, but instead facilitates communication and negotiation so that spouses may reach their own agreements with each other.

Mediation is required for spouses in Illinois divorce cases involving children and for parties in Illinois paternity cases in order to address the issues of decision making and parenting time regarding their parenting plans.

Spouses in Illinois divorce cases with or without children and parties in Illinois paternity cases also have the elective option to mediate their financial issues, and in some circumstances the court has the discretion to order these parties to attend financial mediation.

Some spouses in divorce and family law matters may not be ideal candidates for the mediation process. For example…

People who demonstrate a lack of transparency regarding financial and/or parenting issues, who have obstructionist personalities, who have both diagnosed and undiagnosed mental health disorders, and/or who have a history of domestic violence may be challenged to reach mediated agreements regarding their financial and parenting issues pursuant to divorce.

One cost of mediation is financial. Private mediation may be conducted by trained divorce and family law attorneys, mental health professionals, financial professionals, and former Domestic Relations judges regarding the financial and parenting issues pursuant to divorce and requires payment of the mediator’s fees in addition to payment of the attorneys’ fees for any mediation sessions that may also attended by the spouses’ respective attorneys.

Alternatives to private mediation may be available in certain jurisdictions. For example, the Circuit Court of Cook County, Illinois offers a free Domestic Relations Division mediation program that addresses the issues of decision making and parenting time for parents negotiating their parenting plans. However, this free mediation program does not address financial issues such as property division, spousal support, and child support.

Additionally, there are financial costs regarding attorneys’ fees required to provide each spouse with legal advice pursuant to their mediation sessions and to draft and finalize necessary court documents resulting from spouses’ mediated agreements regarding financial and parenting issues. However, despite the financial costs involved, mediation is generally much less expensive than contested litigation.

Another cost of mediation during COVID-19 is time. For example, there is generally a waiting list of several months for completion of the Circuit Court of Cook County, Illinois free Domestic Relations Division mediation program.

In contrast to contested litigation, private mediation regarding the financial and parenting issues pursuant to divorce may expedite and reduce the time required to complete the divorce process, but the failure to reach comprehensive or partial mediation agreements regarding financial and parenting issues may still result in the need for litigation to resolve disputes and conclude the divorce process.

There are, however, several benefits of mediation during COVID-19 that may be particularly advantageous.

Mediation involves an inherently facilitative approach that is focused upon meeting both spouses’ needs and interests, which creates an environment of mutual success, as opposed to contested litigation, which is often inherently adversarial.

Mediation may also improve the emotional well-being of spouses and their children and enhance spouses’ ability to co-parent their children going forward. Mediation often provides both spouses with increased control over the dispute resolution process because they reach their own agreements, as opposed to a judge issuing rulings regarding their financial and parenting disputes, which often leads to higher levels of satisfaction with the outcomes of their mediated agreements.

Because spouses are mutually invested in their mediated agreements, these agreements are often more durable and likely to be observed by both spouses, which may reduce or eliminate the need for additional litigation to enforce court orders after the divorce process is completed.

The COVID-19 pandemic has resulted in the temporary and potentially indeterminate closure of many courthouses in Illinois and across the country, except for legal emergencies. Mediation during COVID-19 may be conducted remotely in divorce matters via video or telephone conference to facilitate and expedite agreements regarding financial and parenting issues that may reduce the time and cost associated with additional litigation delays pursuant to the current court closures.

Remote mediation during COVID-19 may also reduce unnecessary physical exposure to illness resulting from a trip to the public courthouse.

As many spouses are faced with emotionally charged financial and parenting issues such as the payment of spousal support and/or child support and the exercise of parenting time in the midst of the daily economic and public health uncertainties surrounding the COVID-19 pandemic, mediation may provide these benefits:

1. More immediate, creative, and mutually satisfactory legal solutions to the resolution of these financial and parenting issues.

2. More control by the spouses over the process and the outcome of divorce matters because their mediated agreements do not require judicial intervention.

Since its inception, mediation has been an invaluable method of alternative dispute resolution in divorce and family law matters. Particularly for divorce and family law matters in the time of COVID-19, mediation stands to become a more important resource than ever before in the resolution of financial and parenting issues during this challenging and unprecedented public health pandemic.

Dr. Jennifer Lavin is the Principal Attorney of Jennifer L. Lavin, P.C. in Chicago, Illinois and focuses her practice exclusively on divorce and family law matters in Cook, DuPage, Kane, Lake, and Will counties. Jennifer is a divorce and family law mediator in Cook County, a Fellow with the Collaborative Law Institute of Illinois, and a court-appointed Child Representative, Guardian Ad Litem, and Parenting Coordinator in Cook County. Jennifer is the recipient of the 2017, 2018, 2019, and 2020 Super Lawyers Illinois Rising Star award.