[PODCAST] JAMS Neutrals on Using Mediation to Navigate the Complexities of Family Law Disputes

In this podcast, JAMS neutrals Hon. Grace G. Dickler (Ret.) and Hon. Karen G. Shields (Ret.) explore how the pandemic affected family law disputes, how virtual proceedings provided an avenue to keep cases moving forward and how the transition was received by neutrals, attorneys and parties. The neutrals also take a deep dive on the preparation that aids in resolving family law cases, helpful documents to have and the role that outside experts play in helping to facilitate negotiations between parties. Judge Dickler and Judge Shields offer their thoughts on the timeline for when to bring in a mediator and the complexities that are often involved in these cases. The conversation concludes with a discussion of how mediation can help parties get more involved with the outcome of their case and the prediction that mediation for family law disputes is going to continue to rise in popularity.

[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're talking about mediating family law disputes. With us are two former family law judges in Cook County, Illinois, who are now JAMS neutrals: Judge Grace Dickler and Judge Karen Shields.

You know, thank you both for being with us. Judge Dickler, I'll start with you. You joined JAMS this year after 34 years on the bench, but you've been a longtime proponent of mediation. Can you talk about what led you to that position?

[00:00:38] Judge Dickler: Sure, Andrew, I'm happy to. I was assigned to a domestic relations courtroom in 1991 at a time when mediation was not even discussed as an option in family law cases in Cook County.

However, I observed that when parties had input into the resolution of their cases through settlement negotiations, which is what I did as a judge, they were more apt to abide by their agreements and the incidents of post-decree litigation decreased. So, as the years wore on, I observed and studied other jurisdictions where mediation was the norm.

Upon being appointed presiding judge of the domestic relations division in 2011, one of my first goals was to expand mediation in family law cases. Cook County had had mandatory mediation for years with regard to custody and visitation issues. However, there was no existing rule or statute that allowed a judge to order parties to mediation for financial issues.

I formed a committee—that thankfully included Judge Shields and other visionaries in the field—and together the committee drafted the first rule in the state of Illinois that allowed judges to order parties to mediation in financial matters, even absent their agreement. I felt strongly that this rule would be a game changer and would expand the usage of mediation in Cook County.

[00:02:39] Moderator: And did it have the impact that you thought it would?

[00:02:41] Judge Dickler: Well, interestingly, it took a while. It took a while. I think that I thought it was going to immediately explode. And it took some time for the judges to become comfortable with referring parties to mediation for financial issues without their agreement.

But I think that as time progressed—and it's been now over a decade since we implemented the rule—as time progressed, we were able to see a difference in terms of the usage of mediation in financial cases.

[00:03:22] Moderator: And, and what impact, if any, did you see the pandemic, Judge Dickler, have on mediations? You know, from your vantage on the bench.

[00:03:31] Judge Dickler: OK. So, from my vantage, what happened was that on March 17, 2020, our chief judge, Timothy Evans, shut down in-person access to the courthouses in Cook County. And, of course, he did so for the safety of the employees and the public. We all thought that we would be back in a couple of weeks.

Unfortunately, that was not the case. As illnesses and deaths continued to grow, we realized very early on that we needed to develop a system for remote access to the courts and for resolution of disputes. Thankfully, a previously unknown company named Zoom allowed us to rev up and start conducting court remotely.

However, as with everything, there was a big learning curve for judges. Family law, as you know, is not an area where cases can wait, where we could just put off matters a year or two. Ongoing family issues do not stop because there is a pandemic. In fact, they frequently increase, so it made perfect sense that the mediation community would step in and help the court resolve issues. And they did. I immediately met with mediators, and we formulated administrative orders and plans that would allow the mediators to help the court and practice mediation remotely.

I'm sure, again, that my colleague, Judge Shields, has thoughts on the effect of the pandemic on family cases, but I do believe that had revved up mediation and family cases even more.

[00:05:34] Moderator: Well, let me bring you in, Judge Shields. You've been with JAMS for 14 years. How did the pandemic change how you helped clients resolve their matters? Did you see any special challenges over the last two years?

[00:05:46] Judge Shields: Before COVID, I'd refused to even try to have mediation using any kind of online possibility. I would get requests to do it over FaceTime. You know, people needed to be home with their kids or [use] FaceTime because someone was out of the state or whatever. And I would refuse. I'd say, “I don't see how that's possible.” When the COVID shutdown occurred, JAMS immediately started training us on using Zoom. I don't even know how JAMS was so far ahead of that curve.

Like Judge Dickler, I had never heard of Zoom, and I learned how to use it, I think, in the first week or two after the shutdown. And it really seemed to go well right from the start, even with the idea that everyone, that meant the clients, the attorneys and the mediators—all seemed to go well.

Everybody had to learn how to use it, and they adjusted very quickly. So, I think I didn't feel there were any special challenges. You know, there's a challenge to having people online. They’re online talking to you and not in the same room. But once you learned how that worked, you could easily navigate that.

You can put people in their own rooms, and you get to go in and talk to them, and sometimes I think it takes a little longer for them to warm up. But I'm not even sure that that's true. It worked really well, and I will support Judge Dickler on the fact that there were more mediations coming out of the family law division because of COVID, because people couldn't go to court. They had to get some resolutions.

[00:07:38] Moderator: Obviously, there are still a lot of cases that are done in person today. Have you found that some cases lend themselves better in person versus remote or, or vice versa?

[00:07:51] Judge Shields: Yes, but I will say fewer than I had thought. Originally, I thought, you know, everybody's got to be in the same room with me, or how will this work? But I find that there are a few cases that really do need to be in the same room, or the same room with the mediator, or the same room with their attorneys. However, by and large, It works well.

I'll tell you who tells me who—when it needs to be in person: That's the attorneys. It's not the parties because they'll have that discussion with their attorneys. But the attorneys will say, “This one really needs to be in person.” So, have I done cases in person over the last two-and-a-half years? Absolutely. I have been in Florida and flown back to Chicago to do a case, you know, because it needed to be in person. It does make a difference in some cases, but I can't tell you that I think it's the majority of cases by any means.

[00:08:50] Moderator: Well, we probably have lawyers listening who have never participated in a family law mediation. So, Judge Shields, can you just tell us how you structure the sessions? Are attorneys always present?

What kinds of documents or other materials help clients best prepare for mediation?

[00:09:08] Judge Shields: So, every mediator has a slightly different process, just like the attorneys have a different process, but there are some basics. First, the mediator has to learn the facts, right? The names of the people, what the status of the case is.

You know, the cases don't come in at the same status. So, first off, is it filed? Is it even a divorce? Is it pre decree? Is it a parentage case? Is it post decree? Are there ongoing issues in court being heard right now, or is it a quiet case? It can come in at any point in time. So, oh, you want to know whether there's a GAL or a child rep appointed, or should there be? Are there children, in fact, at all? And are there attorneys? That’s another one, because not all cases come in with attorneys right off the bat. So, is there any intention to have the mediation with the attorneys, or do they not want it? Sometimes the parties come in and say, “We want to do it ourselves.” I think they're trying to save money a lot of times, so we have to work our way through that.

And although that involves conversations, if the parties do have attorneys, I'll always first recommend that they begin talking to the attorneys and get one on the case if they don't have one, because they need to hear their rights and how the law works from someone other than me. That doesn't mean I won't be talking about the law with them, because at different times you have to, but it does mean that they hear it twice and they're hearing it from the person who is representing them. I consider that being able to trust it more. Until they know me, they don't trust me.

To help the parties prepare—you asked about documents—I have a number of forms that I created that I give parties. It evolves into a list: parenting agreement, checklist list of holidays that they'll need to consider when coming up with their parenting time schedules, child support checklist, list of divorce financial matters. These lists are not for them to fill out. They're literally to help them focus on what things they'll need to consider and what things they'll need to pull together. It helps them organize their thoughts, and I even sometimes include the Illinois-required financial affidavit, depending on whether the parties have attorneys. If they have attorneys, they're going to receive that before, but if they don't, then they get it from me. I sometimes offer these lists to the parties even when they have attorneys; it helps them structure, and so it will help the attorneys too. So, it just depends.

If the parties do have attorneys, I might first have a phone conversation with the two attorneys or the two sides attorneys together, or maybe apart. And then I'll have an individual meeting with each party and his or her attorney, and usually these last an hour, give or take. If anything, they might go a little longer depending on the issues and concerns. This helps me to understand the facts, what the issues are, if there are any agreements or understandings. Is there a prenup? Is there a postnup? What do we need for mediation? Do both sides have what they need to move forward? It helps me get questions from them to find out. Their questions sometimes are very telling. What are they most concerned about? So, I can make note of that. And then we'll set the mediation.

If something comes up from these meetings, these individual meetings, then we can address that. Perhaps I bring the attorneys back together on another day, something like that beforehand. It's a road map, but a road map with a lot of branches.

[00:13:17] Moderator: And generally, you know, if parties do have lawyers, when should those lawyers think about engaging a mediator? When do they know that a dispute is most ripe for a neutral’s involvement?

[00:13:31] Judge Shields: I think I'm going to answer this, and then I'm going to say Judge Dickler might have some thoughts on this too, coming from the bench more recently. I've seen cases at all different times in the process: before speaking to attorneys, before engaging attorneys, before filing the divorce papers, after filing but before discovery is done, after the case is begun, even after the case is partly tried, even after the case is fully tried, even after the case is in appellate court, even after a judge has rendered a decision. It’s interesting. There is a thing about family law where people really do want to make a decision together. It's rare for someone to really want the judge to make the decision. That's part of having their input and their control. So, when is the best time?

[00:14:26] Judge Dickler: There's no one answer. I would agree wholeheartedly with Judge Shields. As Judge Shields stated, there's really no two cases that are alike, and there's a whole spectrum as to when mediators become involved in the case, as she stated.

I think that one of the major issues, though, is that parties need to be ready to discuss the dissolution of their marriage. I think that one of the biggest impediments to resolution of a case that I have seen is if one of the parties is not yet ready to separate. Unfortunately, in some instances, one party is ready, has known about this event for a long time, has been thinking about it; and the other party had no idea that dissolution of their marriage was even contemplated by the other side. So, I think that mediation, as Judge Shields said, can come in at any time during the process, but the parties have to be prepared and ready to actually discuss the fact that their marriage is dissolving.

[00:15:49] Moderator: And when you're in mediation, how do you know when to assert yourself?

[00:15:54] Judge Dickler: I think that it's really important to allow the parties to have their say—and actually, I learned this from Judge Shields—to listen to them, to let them express their concerns and their issues before we insert ourselves and let them know, you know, what a judge might rule in the case or what the probable outcome would be in court. Judge Shields, maybe you can put a little light on that.

[00:16:26] Judge Shields: It's a tough question because sometimes the cases come in and you're told right up front: “This is what we want from you.” And I say, “Well, then, are you asking for a neutral evaluation, or are you asking for a mediation?” “No. We want a mediation.” “Well, then, let's mediate, right?” So, let's get the parties in here and let them make some decisions, talk it out over, kick it around; and let's see where we're going. It's not uncommon for parties to ask when you're in the heart of mediation, “Judge, tell her, tell him this is not what will happen in court,” or “I'm going to get this because that's what judges do.”

It's a tricky part to know when to do it because of this. If it's OK for us to tell them what the law is or if there's a mandatory something, they should know that, but they can agree differently. And that's obviously the beauty of mediation. But if they want to have you just tell them the whole case, you actually can't because you won't know.

Every judge is a little different. You don't want to be telling them what they should do and how the case will end up. It kind of defies mediation. On the other hand, there comes a point where if they have not come to an agreement, it doesn't hurt to assert ourselves to give them some indications of avenues.

Sometimes I just make a suggestion. I'm like, “I'm not saying this is what a judge would do. I'm not saying that it's the best thing to do. But what if it could it be one of your pieces to brainstorming?” You know, could it be one of those kinds of things? And a lot of times, it works, but the real problem comes down to if we tell somebody something too early and it's not what someone wants to hear, then they are not with us any longer. They don't trust us. And it, it's, it's unfortunate, but it's true.

[00:18:52] Moderator: Mm-hmm. You got to be careful.

[00:18:52] Judge Shields: You need to stick to mediating as much as possible.

[00:18:54] Moderator: And Judge Shields, you've mediated a lot of disputes among high-net-worth individuals, which are a different category, and sometimes they require financial experts, therapists, other professionals. Who chooses them, and what purpose do they serve and how? How do you decide whether they're necessary?

[00:19:13] Judge Shields: Well, no question, parties and their attorneys sometimes need assistance of experts, and that would be whether they're in mediation or in court.

But sometimes we pick up on it in mediation, and sometimes they come into mediation, and they’ve already got them because they were in court for assistance. One of the examples is a financial planner can help a party plan for his or her future, knowing what assets they'll have or what kind of income they'll have and how to make that work over a period of time and what money do they need to earn in order to make the agreement work, that kind of thing.

A divorce financial planner can help prepare the documents needed for a mediation or for court, and these experts who are there to help, especially the financial ones. There are people in a case who have not ever written a check, paid no attention to what the income was, [don’t] really know what the assets have built up to. These can be in very simple cases and in very high net worth cases. You cannot get an agreement in mediation if someone—50% of the case—doesn't know or understand what the finances are and how it will affect them. It's not possible, so it's very important. So, I sometimes recommend financial planners or financial neutrals.

So, a neutral would be someone who both parties agree to, and then they both are working with this financial neutral. That person can put together some of the documents, the financial affidavits, etc. That works and saves them money if they can do it that way. Both parties sometimes need all of that.

They engage, sometimes, a business valuation. So, if we've got a business, a family business or a business that someone maybe inherited it—and it will not be marital necessarily, but it still impacts how the marital assets get split up and what the income is like—we still need someone to evaluate the business value. So that's done. And sometimes that's a neutral, or sometimes people get separate evaluators. Real estate appraiser is another expert that—ironically, people don't even think of it that way because they're so used to getting appraisals on their property—but that's an expert that's needed if they don't have an agreement themselves about what the house or a piece of property is worth.

The therapist coaches were really brought in when people were doing a lot of collaborative—mediation obviously isn't called collaborative, but it is a collaborative form of being. Judge Dickler mentioned when you have a case where one party didn't realize they were going to be getting a divorce and they're just not ready, and so that person might need a therapist, might need a coach. Those can be one and the same person, might be two separate people, but the coach literally can come to the mediation, be in the same room, or not be in the same room as the couple, but certainly be in the same room with the person that they're coaching.

Sometimes these coaches are used for parenting. A coach who has a background of therapy for children that knows about child development can be there to help the parents understand how the parenting time will affect that child at that child’s age, how it will change over time, how the child is being impacted by their divorce and how they're treating one another, etc. So, there are really some very, very valuable situations where an expert who can coach is needed.

[00:23:52] Moderator: Let's end on a bigger-picture question for both of you. Mediation and family law has come a long way over the last few decades, as you suggested, Judge Dickler, at the beginning of this conversation. How do you foresee its evolution over the next decade, especially in relation to the court system?

[00:24:12] Judge Dickler: Well, I think that courts are now bursting at the seams. Family cases are becoming more complex and, at times, more contentious than they were before. I think this may be reflective of society today, and courts are inundated with motions.

It sometimes takes weeks or months even to be able to get before a judge. Judges, unlike mediators, do not have a choice of whether or not they will take a certain case. A case comes into the courthouse; it's assigned to them. It's there regardless of how busy they are or how many cases they have on their calendar.

So, mediators on the other hand, they have the ability to focus on one case at a time and to devote as much time as necessary to their given case because if they are unable to take a case in a reasonable period of time, they can refuse to take their case and devote their time to cases they have pending.

So, I think that that's a really big difference between the courts and mediation. And I think that because of that factor and possibly others, that not only is mediation here to stay, but I think that we will see more and more cases use mediation as a means of resolving their family law disputes.

[00:26:00] Judge Shields: I agree with everything Judge Dickler just said. When I left the bench 14 years ago, and I said, “I'm going into mediating family law cases,” one of the attorneys in the division said to me, “No one will ever start doing mediation. No one will send you business. It will not happen. Nobody's going to go,” and that I was doing the wrong thing by leaving the bench to mediate. That was told to me.

It took about five years for him to bring in a case to me, but ultimately, I did several with him. So, things change, and it really was a change. You know, it was not a dramatic one. It was little by little. Today, there are the rules, the laws, the requirements around family law mediation—one of which was the series that Judge Dickler mentioned earlier—so that the judges could send people to mediation in financial cases against their will if they thought it was the appropriate thing for the parties.

There are so many family law cases. There are new filings for divorce. There's the parentage. There's post decree. You know, it's not all just the divorce cases themselves. I had someone say to me recently, “Well, there are fewer cases being filed in divorce court.” Well, have you ever seen the number of parentage cases and the post decree? Because they keep going.

There's a lot going on, and Judge Dickler mentioned how burdened the judges in the divorce division are—and they are—and they handle all of these three types of cases, all of them. And it's not that they're not working. It is a heavy, heavy load. And so, the parties have started hearing about mediation, and they learn that if they mediate, they can take part in making their own decisions and move it along more quickly. Some of them want more privacy in their family matters, whether it's parenting or financial or both. And the parties can make agreements that will work for them and their family, but the judge can't make some of those agreements; the judge can't order some of those things. So, and a big part is, some of them really want to work at that relationship so that they have a better relationship in the future.

My prediction is the same as Judge Dickler’s. Family law mediation is here to stay, and it will continue to grow.

[00:28:39] Moderator: Well, Judge Shields and Judge Dickler, thank you so much for your time. We really appreciate it.

[00:28:45] Judge Dickler: You're welcome.

[00:28:46] Judge Shields: Thank you.

[00:28:47] Moderator: You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider.

Our guests have been Judge Grace Dickler and Judge Karen Shields. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.