Family mediation is one of several alternative dispute resolution options available to couples in Illinois seeking to resolve issues involving either a divorce or parenting issues. Other alternatives to litigation include collaborative divorce, cooperative divorce, and arbitration.
In Illinois family, divorce, and child custody mediation, the parties cooperate to resolve conflicts and reach an agreement regarding issues of child custody, child support, spousal maintenance (alimony), and division of marital assets and liabilities with the assistance of a neutral third party mediator who is responsible for:
Mediation may be initiated voluntarily by the parties at any stage of their case, even before filing for divorce. It may also be ordered by the court in a domestic relations case. Even if the parties attend mediation because they were ordered to do so by the court, any resulting agreement as a result of the mediation is voluntary.
All of the circuit courts in Illinois have mandatory mediation programs for cases involving child custody or visitation issues. However, parties can be excused from mediation if the court determines that an impediment to mediation exists, such as domestic violence.
In cases in which mediation is mandatory, Illinois Supreme Court Rule 923 requires that an initial case-management conference will be held within 90 days of the service of the petition or complaint. If, at the time of the initial case management conference, the parties are not in agreement regarding a parenting plan, the court will schedule the case for mediation. Within 30 days after the mediation is complete, a full case-management conference will be held.
Local court rules vary regarding the minimum number of mediation sessions, the time period required for each sessions, how impediments to mediation and exceptions are to be handled, and provisions for confidentiality. In Cook County, the court will assign a mediator and the parties are not required to pay a fee. In other counties, the parties generally select their own mediator and are responsible for the mediator's fee. In these counties, the court may apportion the fee between the parties, select the mediator if the parties are unable to select their own, or order the mediator to perform pro bono work.
According to the Model Standards of Practice for Family and Divorce Mediation, the “primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of [their children] . . . and to facilitate agreement among the participants.” Unlike family law and divorce litigation, the mediation process is private. Discussions during mediation are privileged and confidential.
Typically, in family law mediation, each party is represented by his or her own attorney. However, if the process is initiated voluntarily prior to the filing of a case in court, some couples choose to undergo the mediation process without an attorney. Even in a voluntary mediation, it is helpful for each party to retain his or her own attorney in order to facilitate the process. Attorneys are especially important when an imbalance of power exists between the parties. Should the parties choose not to retain attorneys for the mediation process, an attorney will ultimately be necessary to file the results of the mediation in court and obtain a final order in the case.
Many participants in mediation will choose to retain advisors and experts, such as financial advisors, accountants, and therapists, to ensure that both parties and the mediators are fully informed of the facts when deciding the issues involved in their case. Unlike litigation, the parties may choose to jointly retain neutral experts whose opinions and statements will be priviliged and will not be used outside of mediation should the process fail.
Illinois has adopted the Uniform Mediation Act, which provides for an evidentiary and discovery privilege for all communications occurring in the mediation. However, there are certain exceptions to this requirement of confidentiality. The mediation privilege does not extend to:
Mediators are prohibited from reporting to the court except for communicating whether the mediation has occurred, whether a settlement was reached, and who attended the mediation.
Deciding issues through mediation has several advantages when compared to litigation:
Family mediation, divorce mediation, and child custody mediation tends to be inappropriate when there is an imbalance of power between the parties, the threat of violence, concerns that one of the parties may not be mentally or emotionally competent, or when one of the parties is making unwelcome attempts to reconcile.
Selecting the right mediator is crucial. The parties should interview the mediator prior to retaining him or her and ask several questions:
Mediators will speak to each party individually before taking the case to ensure that the case is a good fit for mediation and for the particular mediation. These discussions give the parties an opportunity to explain their perspectives on the issues involved in their case and to establish a comfort level with the mediator.
If you are retaining an attorney to represent you in the mediation, you should meet with your attorney before the process begins. Your attorney will explain what to expect from the mediation process, assist you in identifying your objectives, discuss the potential options for resolving the issues in your case, and assist you in preparing a strategy for dealing with contentious issues.
Every family mediator will have a slightly different approach to the mediation process. However, a family mediation will typically proceed as follows:
Even if you are unable to successfully reach an agreement through mediation, the process can be beneficial. The mediation process clarifies the outstanding issues for the parties and gives the parties an understanding of their potential options. It is common for agreements to be reached through the parties' attorneys on outstanding issues shortly after mediation.