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Uncontested Divorce or Mediation? Starting the process in Illinois.

As an uncontested divorce lawyer and divorce mediator in Illinois, I often speak with people who want to get an amicable divorce. They know that an uncontested divorce is the fastest and most affordable way to get divorced in Illinois. Still, they are not quite sure whether they need to mediate, or just get started with their divorce. 

Before we get into the details of uncontested divorce and mediation in Illinois, I’d like to briefly define the two topics.

What is an uncontested divorce in Illinois?

An uncontested divorce is the fastest and most affordable way to get divorced in Illinois.

Why? Primarily because the parties are in agreement on all matters relating to the divorce. For example, it involves agreement as to dividing marital assets and debt, the payment of spousal maintenance (aka “alimony”), decision making an parenting time with the kids, what to do with the real estate, and more. When people agree to all these issues, many divorce lawyers offer flat fee representation, and in many counties the divorce can be finalized about a month.

Each year I handle many uncontested divorce cases, and they usually have one thing in common. People have often not come to an agreement on every single issue prior to contacting me. That’s normally not a problem. I can usually help people fill in the blanks without much problem.

What is divorce mediation?

Divorce mediation is a process whereby a neutral divorce mediator assists the parties in coming to agreement.

Because a divorce mediator is a neutral, that means the mediator does not take sides. Additionally, you should know that Illinois divorce mediation is non-binding. Than means people can participate in mediation, come to an agreement, then change their mind before the agreement becomes enforceable by a court order.  That means one should only enter mediation if both parties are acting in good faith to reach an agreement. Otherwise, it can be a massive waste of time.

What is divorce mediation appropriate?

Mediation is not appropriate for everybody. For example, if people are very stuck in their views, and very far apart, mediation will likely turn into a waste of time. Sometimes people do need the court to resolve their divorce.

However, mediation can be appropriate in the following circumstances:

  1. Both people are acting in good faith
  2. Both people think they need the help of neutral to come up with solutions
  3. Both people want a better idea of what type of agreement might work for an uncontested divorce
  4. Both people realize the mediator is a neutral and is not on their “side” to pressure the other person
  5. Both people are honest with the mediator

Should an Illinois divorce mediator be a lawyer?

Your divorce mediator should be a divorce lawyer in Illinois. For example, I am a divorce lawyer in Illinois, and a mediator with training through Northwestern University’s Mediation Skills Training Program.

Ideally, mediation should be a process that leads to an uncontested divorce in Illinois. While agreement is great, it is a legal process.

The problem is that many private practice divorce mediators are not lawyers. Some are social workers, and some are finance people. Some even move to Chicago from the East Coast to take advantage of the “divorce market” in Chicago.

Divorce mediators who are not lawyers have the following problems:

  1. Their knowledge of the law is poor – and divorce is a legal proceeding
  2. They produce unenforceable agreements that judge’s do not allow
  3. They practice law without a license, drafting legal documents for people
  4. They don’t understand the problems that can occur after people are divorced
  5. They don’t have the skill or knowledge to draft complex legal documents
  6. They conclude mediation with a “memorandum of understanding” which leaves giant issues unresolved
  7. They don’t have legal malpractice insurance, as lawyers do, and that makes them careless
  8. They are not licensed as mediators – anyone can be a mediator in Illinois.

Did you catch that last one? Per Illinois law, anyone can be a mediator in Illinois simply by self-designation. A mediator is anyone who mediates. That’s crazy! Just because you cut a head open, you’re not a brain surgeon. Ouch!

When I began mediating divorce years ago, I was already a divorce lawyer in Illinois. I was shocked at the level of ignorance among non-lawyer mediators when I went through the mediator training at Northwestern University. Later, I joined a large mediator industry group, and I’m repeatedly amazed at the ignorant questions being asked by non-lawyer mediators. At one networking group I attended, one very popular mediator stated during his introduction, “I divorce people.” No, he does not. He conducts poor mediations and gives people a false sense of confidence in their agreements.

Many non-lawyer divorce mediators will try to give people the impression that their services are less expensive than mediation conducted by a mediator who is also a lawyer. But that is often not the case. Believe me – some of these incompetent non-lawyer mediators are raking in the bucks. And keep in mind, paying a bit less to have a non-lawyer muddle through legal issuess isn’t exactly a good deal.

What is the result of divorce mediation in Illinois?

A successful divorce mediation should lead to an agreement. That agreement is often embodied in what the mediator calls a “memorandum of understanding,” or MOU. The MOU will detail the points of the agreement.

But a successful mediation does not get people divorced. As stated above, divorce is a legal process.

Ideally, people with an MOU would agree to an uncontested divorce in Illinois. Normally, at least one person would engage an uncontested divorce lawyer who would translate the MOU into proper legal language, draft the required documents, file the case in court, schedule the court date to finalize the divorce, and appear in court to finalize the divorce.

One thing you should know is that the same person cannot be a divorce mediator and the lawyer for one of the parties to mediation. That’s because a mediator is neutral, and a lawyer is not. So if I mediator a divorce in Illinois, I cannot represent one of the people for whom I mediated.