Sunday, June 20, 2010

Bloomington Legal Newsletter -- Litigation/Collaborative Divorce/Mediation

I have found that most new clients are not aware of the many different methods they can use for their divorce in Bloomington Illinois. These methods can be grouped into three general categories: Traditional Litigation, Collaborative Divorce, and Mediation. Hopefully, the information below helps describe these three options. As always, if you have any questions, please don't hesitate to ask.

What is divorce?
Divorce is a process to legally end a marriage. A final Judgment of Dissolution decides the issues of dividing property, maintenance (financial support for a spouse), legal custody/placement of children, child support and other related topics. Illinois divorce law is set out in Chapter 750 of the Illinois Compiled Statutes available at

How do these issues get decided?
There are a number of procedural models or methods that may be used to resolve these issues. The difference lies in the amount of attorney and court involvement, conflict, and cost. Each issue, for example child support, may be resolved either by reaching an agreement that must be approved by the court or by having a contested hearing and then a judge makes a decision.

A few years ago, couples facing divorce did not have options that focused on minimizing conflict and emphasizing mutual problem solving. Today, clients have a choice as to the process that is best suited to their personal situation, including options like mediation and collaborative practice.
The following are the choices you have for your divorce process:

1.           traditional litigation/negotiation,
2.           collaborative process, and
3.           mediation.
Traditional Litigation and/or Negotiation
Litigation is the traditional divorce process. Both parties hire attorneys, who provide legal advice and represent their client in negotiations and court hearings. This model is based upon traditional courtroom advocacy -- each attorney advocates positions based on the personal wants, needs and viewpoints of their clients. The parties communicate mainly through their attorneys, rather than directly with each other, regarding their positions, proposals and counter-proposals.

The process may involve the use of formal legal procedures, known as "discovery," to obtain financial and other relevant information. Discovery may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Each party may also hire experts to support their positions. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others.

Most divorces that are litigated are eventually settled, in whole or in part, but substantial time, money and emotion is expended prior to a resolution. Parties to litigation are often likely to return to court in the future to modify issues such as child support, maintenance, visitation, etc.

Collaborative Practice
In Collaborative Practice, the traditional approach of bargaining from a specific position, backed by threats of litigation and court intervention, is replaced by an approach that attempts to settle cases in a manner similar to a settlement conference.  The approach can meet the needs of both parties and the children, and still involves legal counsel. This approach provides both parties with the benefit of legal counsel.

This dispute-resolution option is based on a pledge in which both parties, and their attorneys, contractually agree that the collaborative trained attorneys will not go to court.  The key ingredient of Collaborative Practice is that the negotiation between the parties takes place in four-way meetings where both parties and their attorneys are present.  All parties sign a Participation Agreement that sets forth the principles and guidelines for collaborative family law.

The key element of the Collaborative Practice process is a commitment by the parties to work toward a negotiated settlement in a structured, non-adversarial setting that protects privacy and confidentiality, rather than utilizing litigation or court intervention.  Even though this process is much gentler, the Collaborative process is not necessarily the best approach for everyone.  The divorcing parties must be willing to work honestly, openly, and in good faith to arrive at a fair resolution without court involvement or intervention, and the attorneys should be specially trained in collaborative practice.
If appropriate, the collaborative divorce process may involve a collaborative team approach, including financial advisors and mental health professionals as coaches and child specialists. The goal of the experts is to educate the parties and explore settlement options to meet the needs of both parties and their children.

This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. The collaborative divorce process may produce greater satisfaction of the parties and better results for children, and participants as they have greater involvement in the process and it is designed to be less adversarial that traditional litigation.

The most significant element of Collaborative Practice is that the parties are directly involved in the process and retain control over their outcome.

In mediation, the parties hire a neutral third party to assist them in reaching agreements about their divorce. The mediator can provide information about the divorce process and guide a discussion to help resolve issues. The mediator does not represent either party and will not advocate for either party.
Mediation in Bloomington Divorces may occur with parties who have hired attorneys or parties who are not represented. In many cases, the interests of the clients are best served when the parties have counsel to assist them and advise them through the mediation process. The client is then well prepared for the mediation process and fully understands their objectives. The parties communicate with each other directly, in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle.

Financial mediation should only be utilized when both parties have a similar knowledge of their financial circumstances and also similar ability to verbalize and negotiate their positions. Financial mediation is generally not an appropriate forum if there has been domestic violence, abuse, or manipulation, in the relationship.

This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.

Jon D. McLaughlin, Esq.
Allison & Mosby-Scott
210 1/2 North Williamsburg Drive
Bloomington, Illinois 61704
Phone: (309) 662-5084
Cell: (309) 319-6206



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