Jennifer L. Lavin

Jennifer L. Lavin, P.C.

Women Belong West Loop Circle Spotlight

January 25, 2018

Telephone:  (312) 919-8857

Email:  jll@lavinfamilylaw.com

Website:  www.lavinfamilylaw.com

I.  Alternative Dispute Resolution: An Alternative to What? 

Litigation:  The Traditional Approach to Divorce and Family Law Dispute Resolution in Illinois

Definition:

A divorce and family law judge acts as a third-party trier of fact who does not provide legal advice to the parties and issues adjudicated rulings regarding litigated issues pertaining to the parties’ finances and/or children in the absence of the parties’ agreement and/or in the absence of the parties’ compliance with Illinois divorce and family law statutes.

Costs:

  • Inherently adversarial approach (I win, you lose)
  • Money – costs can escalate quickly for both parties
  • Time – exponentially increases due to civil procedural requirements and crowded court dockets
  • Adverse impact upon the emotional well-being of the parties and/or their children due to “scorched earth syndrome”
  • Jeopardizes the parties’ abilities to effectively co-parent going forward
  • Lack of control over the dispute resolution process
  • Judicial rulings generally result in at least one party’s disappointment in the outcome decided by a judge who does not know the parties or their children as well as they do
  • Often results in additional litigation for the purpose of enforcement of court orders due to at least one party’s lack of buy-in regarding the outcome of the judicial ruling

Benefits:

  • Useful and often necessary in cases involving difficult to impossible clients (e.g., those with a propensity for lack of financial transparency, who are recalcitrant obstructionists, who have psychological and personality disorders, and/or who have a history of domestic violence)
  • Judicial rulings compelling one or both parties to do what they would not otherwise voluntarily agree to do via court orders may be the only way to get to yes and resolve the parties’ disputes  

II.  Mediation and Alternative Dispute Resolution:

Mediation:  An Early Form of Divorce and Family Law Alternative Dispute Resolution in Illinois Pursuant to the January 1, 2004 Uniform Mediation Act

Definition:

  • Mediation is a form of alternative dispute resolution in which a trained divorce and family law mediator acts as a third-party neutral professional who does not provide legal advice to the parties but instead facilitates communication and negotiation so that the parties may reach their own agreements directly.
  • Mediation is required for parties in Illinois divorce cases involving children and parties in Illinois paternity cases in order to address the allocation of parental responsibilities and the allocation of parenting time.
  • Parties 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.

Costs:

  • Not all parties are a good fit for the mediation process (e.g., those with a propensity for lack of financial transparency, who are recalcitrant obstructionists, who have psychological and personality disorders, and/or who have a history of domestic violence)
  • Money – but generally less expensive than litigation, and Cook County offers a free domestic relations mediation program only regarding the allocation of parental responsibilities and the allocation of parenting time (financial issues regarding the parties’ property and children are excluded)
  • Some expense is required for the parties’ attorneys to provide legal advice and to draft the final court documents resulting from their mediated agreements regarding their financial and/or child-related issues
  • Time – but generally less lengthy than litigation, except for the waiting list to access the free Cook County domestic relations mediation program
  • Potential failure to reach a complete or partial mediated agreement regarding child-related and/or financial issues may still result in the need for litigation to resolve the parties’ disputes

Benefits:

  • Inherently facilitative approach focused upon the parties’ needs and interests (I win, you win)
  • May improve the emotional well-being of the parties and/or their children
  • May improve the ability of the parties to co-parent
  • Increased control over the dispute resolution process even while in the midst of litigation
  • Avoidance of judicial rulings often results in the parties’ higher levels of satisfaction with the outcome
  • Often results in reduced or eliminated need for additional litigation for the purpose of enforcement of court orders resulting from the mediation process due to the parties’ mutual buy-in regarding the outcome

III.  Collaboration and Alternative Dispute Resolution:

Collaborative Law:  A Newly Codified Form of Divorce and Family Law Alternative Dispute Resolution in Illinois Pursuant to the January 1, 2018 Illinois Collaborative Process Act

Definition:

Collaborative divorce and family law is a form of alternative dispute resolution in which a collaborative team comprised of the parties, their attorneys, a financial neutral, and a mental health professional/coach are committed to finding voluntary, durable, future-focused, and mutually beneficial solutions that avoid litigation and are centered upon the needs and interests of the parties.

Costs:

  • Not all parties are a good fit for the collaborative process (e.g., those with a propensity for lack of financial transparency, who are recalcitrant obstructionists, who have psychological and personality disorders, and/or who have a history of domestic violence)
  • Money – may be but is not guaranteed to be less expensive than litigation due to the expense required for the collaborative team members and their compensation
  • Time – but generally less lengthy than litigation, depending upon the parties’ desired speed of the collaborative team and individual meetings required to complete the collaborative process
  • Potential failure to reach a complete collaborative agreement regarding child-related and/or financial issues may still result in the need for litigation to resolve the dispute, in which case the members of the collaborative team are precluded by the terms of the Collaborative Process Agreement signed by all members of the collaborative team from continuing with the parties to a litigated matter, which is intended to be a disincentive to litigation

Benefits:

  • Inherently client-driven approach in which the collaborative team is focused on the parties’ legal, financial, and emotional needs and interests (together, we win)
  • More likely to preserve the emotional well-being of the parties and/or their children due to the presence of the mental health professional/coach
  • More likely to preserve the ability of the parties to co-parent going forward
  • Complete control over the dispute resolution process due to the lack of litigation until the formal end of the collaborative process
  • Avoidance of judicial rulings often results in the parties’ complete satisfaction with the outcome due to their self-determination of the outcome
  • Often results in eliminated need for additional litigation for the purpose of enforcement of court orders resulting from the collaborative process due to the parties’ mutual buy-in regarding the outcome
  • Allows the clients to consciously uncouple and work through their emotional, financial, and legal issues with the efficient assistance of the members of the collaborative team, all of whom are enabled to do what they do best as divorce and family law professionals

Content provided by Women Belong member Jennifer Lavin

 

 

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