Whether or not you are party to a divorce proceeding, if two parents are involved in a court case over the custody of the children, you may be required to attend mediation. During mediation, a neutral third party will attempt to find common ground over issues around parenting time and responsibilities over the minor children.
This article will discuss what you need to know about child custody mediation. We will cover the following topics:
- What is mediation?
- What is the difference between private and Court-mandated mediation?
- When will a Judge order court-mandated mediation?
- Can mediation ever be waived?
- What are the goals or objectives of mediation?
- What is the role of the mediator?
- What are the benefits of mediation?
- Are there any disadvantages to mediation?
- Is there a mediation cost?
- Who pays for mediation?
- What is discussed in child custody mediation?
- What should you not say in child custody mediation?
- Is mediation binding?
- What happens during mediation?
- Some things to keep in mind
- A final note on terminology
What Is Mediation?
Mediation is a process by which a neutral third party can help parents resolve issues around parenting time and parenting responsibilities over their minor children. It can be a way for parents to come to an amicable solution without having contested hearings in front of the judge. When two parties disagree entirely as to how to divide time and responsibilities among the children, in parentage or divorce proceeding, these disagreements will be presented at a hearing in front of a judge. The judge will decide on these critical topics that will impact the minor children’s lives directly.
In mediation, however, the parties have a chance to amicably resolve their disagreements with the help of a neutral third party. This way, they are able to come to an agreement on these important topics and decide on their own how to split their time and responsibilities.
An important element of mediation is the fact that it is confidential. Therefore, parties can speak freely without worrying that what they have to say will be used as ammunition against them by the other party.
What Is The Difference Between Private And Court-mandated Mediation?
You do not need to be part of a court proceeding to seek the services of a mediator. If two parents know that they will be separating and need some assistance in how to divide child custody, they can find a mediator to help them come to an agreement on the topics at issue. This is private mediation.
However, if those same parties have filed a divorce or parentage case and they do not have an agreement on custody matters, the judge will issue an order compelling the parties to attend mediation. That is Court-mandated mediation.
When Will A Judge Order Court-mandated Mediation?
Pursuant to Illinois child custody laws, when a divorce or child custody case has been filed in Illinois, within 90 days of service, the court has to schedule an initial case-management conference. At that initial case-management conference, if the parties are not in agreement regarding matters of child custody, then the judge will schedule the parties to attend mediation.
Can Mediation Ever Be Waived?
In most cases, mediation is mandatory. However, there are some circumstances where mandatory mediation can be waived. These include situations where the parties have already attended mediation and it was unsuccessful, or there is a history of abuse. One party has an order of protection against the other. As always, don't hesitate to get in touch with a child custody lawyer near you for more details regarding when mediation can be waived.
What Are The Goals Or Objectives Of Mediation?
The goals or objectives of the mediation process are adopted from the Uniform Mediation Act. They are as follows:
- Promote the parties to be honest with one another, thanks to the confidential nature of mediation
- Allow the parties to resolve their issues quickly, economically, and amicably.
- Allows the parties to decide for themselves how to divide child custody and responsibilities (rather than relying on a third party, as in the judge, to make those decisions for them)
What Is The Role Of The Mediator?
In Cook County, the role of the mediator is defined by statute. According to Cook County Circuit Court Rule 13.4(e)(4), that role is to:
- Assist the parties in identifying the issues
- Reduce misunderstandings
- Explore and clarify the parties’ respective interests and priorities
- Identify and explore possible solutions that will satisfy the interest of all parties and thereby facilitate the resolution of some or all of the issues in dispute.
Per the county rules, “this definition is derived from Cook Co. Cir. Ct. R. 20.01 (Law Div.) (eff. April 5, 2004), Cook Co. Cir. Ct. R. 21.01 (Chancery Div.) (eff. August 1, 2013) and Michigan Court Rule 3.216(A)(2)(eff. September 5, 2013).”
What Are The Benefits Of Mediation?
There are many benefits to mediation. It helps the parties agree expeditiously. That is because the parties, if they are able to agree, can resolve their issues during the mediation. If they disagree and have to take the matter to a hearing or trial in front of the court, they have to abide by the legislative process, which will take significantly longer.
Another benefit is that it is more economical. As mentioned above, relying on the court process can be lengthy. More attorney fees are incurred as more time and effort are spent to prepare for hearings and trials. Because mediation moves faster, it can save on these costs.
It is fair and beneficial to the parties as each side can come to an agreement that takes into account all of their needs and can accommodate all issues. Furthermore, the process is more amicable than taking the matter to hear. A hearing or trial is, by definition, adversarial. This can create a lot of stress for all involved. Mediation can remove some of that by helping the parties cooperate. It also allows the parties to have control over how they will divide custody.
Where successful, mediation can help parties resolve any disagreements. One of the most significant advantages of mediation is that the parties devise a plan on their own, rather than relying on a judge to decide how to divide child custody. This is significant because it means that the parties will be more likely to abide by the plan. This significantly reduces costs because it means that the parties don’t have to come back to court to force compliance with the agreement.
Are There Any Disadvantages To Mediation?
Mediation will only work when both parties are willing and able to come together and work towards a mutually beneficial resolution. In some situations, one or both of the parties are unwilling to do so. This can make mediation a waste of time and resources for both parties.
Sometimes scheduling mediation can be a lengthy process. This is because mediators’ services are popular, dates can be booked out far in advance, and it can take a long time before mediation can be scheduled. This is especially so when relying on court-ordered mediators. In Cook County, for example, it is not unusual to have your first mediation 3-4 months after the court enters an order for mediation. Sometimes even more.
Is There A Cost Associated With Mediation?
Some counties offer mediation for free. However, as mentioned above, it can take a long time before you are scheduled with these mediators if there is a backlog.
Private mediators will almost always charge for their services.
Who Pays For Mediation?
In counties where mediation is not free or in situations where the parties elect to schedule with a private mediator, the court will generally split the cost of mediation between the parties. However, there are situations where the court can order mediation for a reduced fee or for free if the parties qualify.
What Is Discussed In Child Custody Mediation?
Mediation will cover whatever topics the parties disagree on. For example, if the parties have agreed on how to divide time with the children, who will be responsible for decision making, but disagree on what church the child will attend, then the mediation will focus on that topic.
Where the parties do not agree on anything, then they will use the mediation to come up with a parenting plan that covers parenting time, decision-making power over medical issues, education, religion, extra-curricular activities, and all other aspects of child custody.
While this article is focused on child custody mediation, please be advised that mediation can also cover topics like child support and other topics related to divorces like dividing property or liabilities.
What Not To Say In Child Custody Mediation
There is no specific limitation on what you cannot say during child custody mediation. This is because one of the benefits of mediation is that it is all confidential. What you say to the mediator will not be disclosed to the other party. Therefore, you are encouraged to be candid in your discussion with the mediator.
Is Mediation Binding?
Mediation is non-binding. That means that you are not compelled to follow the agreement you reached in the mediation process. Any agreement does not become binding until it is ordered by the court.
What Happens During Mediation?
Initially, the mediator will meet with each parent separately. The mediator will then meet with both parents together. Under certain circumstances, the parents do not have to be in the same room together. Once the mediator has an understanding of what the issues are and what each party prioritizes, they will propose a parenting plan or help the parties come to an agreement and help them draft that agreement into a formal plan. At the end of the mediation process, the mediator will share with the court who attended the mediation and whether or not the parties could agree.
Some Things To Keep In Mind
The mediator is an independent third party. They do not represent, nor do they advocate for either parent. The mediator is not a therapist and will not provide counseling to either party. The mediator cannot offer any legal advice to either party. The mediator can, however, provide legal information.
Either party can consult with their attorney at any time during the mediation process. Parties can choose to have their attorney accompany them to their mediation appointments. As explained above, the mediator may meet individually with either party.
Minor children may be allowed to participate in the parties, and the mediators all agree to it.
While mediation is a confidential process, a mediator is a Mandated to Report per the Abused and Neglected Child Reporting Act and will have to report any information as it may pertain to child neglect or abuse.
A Final Note On Terminology
There have been significant changes to terminology in Illinois law. Terms like custody are no longer used. What used to be known as custody is now referred to as “parenting time” and “allocation of parental responsibilities.” A custody agreement is now known as a parenting plan.
While terms like “custody” are no longer used by Illinois law and lawyers, we have used them throughout this article for ease of understanding.
Call our office at (630) 324-6666 or schedule a consultation with one of our experienced Illinois mediation lawyers today. You can also fill out our confidential contact form, and we will get back to you shortly.
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