Approach to Mediation/Philosophy

My approach to mediation is simple. Trained in conflict management while working with domestic violence families, I saw first hand how not to resolve conflicts. With those negative experiences fresh in my mind, I wanted to make a positive difference in their lives, while these people are embroiled in conflict. Through advanced training at Northwestern University in Chicago, I am able to help people work through their problems, and at the same time, give them skills to use in future conflicts. With mediation, I help people work through their conflicts while teaching them problem solving, empathy; self-determination and giving them the ability to make informed decisions for themselves. When confronted with a conflict, if they refer back to what they learned in mediation, I will have achieved my objective.

After seeing first hand the physical, emotional, psychological and financial drain caused by divorce and litigation in the court system, I chose to focus on helping divorcing couples end their marriage as amicably as possible. Divorce, unfortunately, is a part of life. With my experience and background, a career as a Divorce Mediator is an easy one to make. It allows me to use my skills to help individuals move on with their lives.

C.E.L. and Associates, Inc. conducts mediations for all family and community disputes. We are located throughout the Chicago suburbs and offer services in Northern Illinois and Southern Wisconsin. Our mediation services are professional and maintain the utmost confidentiality for all our clients. We help people resolve their disputes in a non-adversarial way.

Memberships and Affiliations

-Wisconsin Association of Mediators

Mediation is the way to end "the war" between conflicting parties.

Litigated vs. Mediated Divorces

Litigation

Background. In litigation, it is the ethical duty of lawyers to zealously take the strongest positions possible for their clients. In the "adversary system" model, each side argues as vigorously as possible for a position and it is up to the decision-maker to make a fair decision based upon the evidence and arguments advanced by the parties. In practice, most legal disputes (whether civil or matrimonial) are eventually negotiated to a resolution after they have been litigated in adversarial fashion. In divorce mediation or collaborative divorce, the focus is on negotiating to find the middle ground earlier in the process to save wear and tear on the parties' emotions and finances. In litigation, it is an adversarial process, which your children see, and it is a gamble for all involved.

1. The Adversarial Process

Divorces are part of our adversary process. By design, the system pits one party against the other. The theory is that the decision-maker (the judge) has the benefit of the most persuasive argument from each side and the attack by cross-examination reveals the weaknesses of each side's position. Though this may be an effective way to make decisions in commercial and criminal cases, it certainly is not appropriate for the troubled family. It pits husband against wife, mother against father and hostility escalates into the ultimate war, the trial.

Divorce attorneys are, first and foremost, advocates. They are, by training and duty to their clients hired to "win" the case, to "defeat the other side." The tactics that are used to obtain those results are expensive and destructive.

Divorce attorneys clearly understand that divorce is as much a psychological war, as it is a legal war. That part of the process called "discovery" gives attorneys the tools with which to attack the opponent and to gain psychological as well as legal advantage. Depositions (examinations before trial) of friends, family and business associates, production of tons of documents, scrutinizing personal activities, and evaluation and criticism of each spouse's role as parent, are all part of the tactics used to bring your opponent to their knees.

All of that warfare is expensive. Attorney fees vary from one region of the country to the other and from one law firm to another. The fees may range from $250 to $500 per hour. Keep in mind that the fees and costs are for each spouse. When you add the out of pocket costs, filing fees, witness subpoenas, court reporter fees and transcripts fees the cost of the war often exceeds the amount in controversy and wastes hard earned marital assets that can better be used for you and the children.

2. Your Children Are Watching

Contrary to public perception, Divorce Attorneys practice in and are subject to a stressful, emotional environment. The longer and more bitter the battle, the bigger the fee. However, if you think that the fault lies solely with the attorneys you are missing the point. You, the client, make it all possible. Clients often urge their attorneys to savage their spouse. It is a way to make them "pay for what they have done." When that is your objective the price that you pay goes beyond dollars. It results in the loss of dignity, self-respect and post divorce impairment of your ability to enter into future relationships. Most importantly be aware that your children are watching. As hostility increases they become the innocent victims of the war. "Mom, why are you so angry at dad? Don't you know that I love him?" "Dad, why are you so angry at mom? Don't you know that I love her?"

3. The Gamble

If that isn't enough reason to avoid the war, consider the gamble that you face. An attorney cannot safely predict the decision of a judge. In fact, in most divorce cases, both clients leave the process unhappy with the result.

When you allow the case to go to court you give up the right to make decisions about your own life. Before putting decisions about your life into someone else's hands you need to explore alternative methods of reaching agreement and getting on with your life. C.E.L. and Associates can help you to avoid the war.

Mediation

Mediation is a non-adversarial process in which you, with the assistance of an impartial mediator make decisions that affect your life. The agreement that you arrive at must be acceptable to both parties and the agreement then forms the basis for an uncontested divorce.

Though Divorce mediation is not marriage counseling, the question of saving the marriage is often explored. Supervised communication between the spouses sometimes results in a desire to seek counseling to save the marriage. However, the primary objective of divorce mediation is to assist parties who have decided upon divorce get through the process in a less confrontational setting.
Mediation can take place during the divorce suit, before the trial of the case. When it occurs during the divorce process it is referred to as "court ordered" or "court connected" mediation. However, by that time, both parties will probably have paid attorney fees and started the case in the hostile environment of the adversarial process. Couples facing divorce are urged to consider getting the assistance of a family mediator before retaining opposing divorce attorneys.

The mediator is a neutral party who cannot order either of you to do anything. The agreement that is reached must be acceptable to both of you. He or she will help to defuse emotions, and guide both of you through the web of difficult issues. Through extensive training and experience mediators can often suggest creative solutions to problems that the parties may have considered insoluble. They deal with every issue involved in the dissolution of a marriage: Distribution of property and debts, child custody and support issues, spousal support, and assistance in virtually every subject necessary to lead to a complete agreement and uncontested divorce. Instead of airing these personal and often painful subjects in a public arena (the courtroom), you deal with them in the privacy and confidential setting of the mediator's office. The costs are significantly less than battling it out with opposing divorce attorneys. Most importantly, the process helps the parties avoid destructive battles, which impact upon children of the marriage. It enables you to get on with your life.

Not All Mediators Are Attorneys. Pre-suit mediation does not require that your mediator be an attorney. Though many divorce attorneys are now engaging in this field, trained mediators come from mental health, accounting and other professional backgrounds. They receive special training in skills necessary to help parties avoid contested divorces. Of course, courtroom battles remain the exclusive domain of the divorce lawyer, and if you cannot reach agreement with a mediator, the divorce lawyer is there to help you.

The Mediation Process. In mediation, the parties work with one neutral mediator to come to an agreement with respect to property division, custody and visitation and other issues. A mediator cannot provide individualized legal advice, but can provide neutral education about legal principals and information about guidelines and criteria that are used to analyze common issues. The mediator helps the parties develop an agenda of issues that need to be addressed. If children are involved, the mediator will assist the parties in calculating the presumptive support amount under the Child Support Guidelines. A mediator can assist the couple with developing a variety of options so that the spouses can fashion an agreement that will work for them.

• If appropriate, a mediator can assist the parties in obtaining evaluations of marital assets, such as homes or pensions.
• If appropriate, the mediator may refer the parties to other professionals for counseling on separation and child visitation issues, asset evaluation or tax advice.

If necessary, a mediator can refer the spouses to "consulting counsel," separate attorneys who will review the proposed agreement on behalf of the individual spouse.

Articles Written

How Mediation Can Help You During Your Divorce

Created On: 01/21/2009

Lawyers

Brian James

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