Effective March 1, 1998, the new DuPage Mediation & Evaluation Program will replace the former DuPage Conciliation Program. This new program may be ordered by the court when there are contested issues of parental responsibility. Rules of The Circuit Court of the Eighteenth Judicial Circuit, 15.18 et seq. (1997).
The primary difference between the new and the old programs is that the role of the mediator and the role of the evaluator has been bifurcated and must not be taken by the same individual. This change is intended to maintain mediator neutrality and confidentiality in line with the recommendations of the Commission appointed by the court to review the Conciliation Program.
To implement this new program, the judges of the Eighteenth Circuit have adopted a comprehensive set of rules. While these rules are quite thoughtful and appear to borrow from the best thinking in the mediation field, they raise a number of quality assurance questions that will need to be addressed by the court as the program develops. The purpose of this article is to summarize the new mediation rules, raise questions presented by the rules, and relate them to pending state legislation.
The New Local Rules
To serve as a divorce mediator under this new program, a candidate must satisfy the following criteria:
a. Satisfactorily complete a Divorce Mediation training program and additional training as required and approved by the court;
b. Hold a graduate degree in certain professional fields;
c. Maintain a license in full force and effect where engaged in a licensed discipline;
d. Maintain an office in DuPage County;
e. Provide evidence of malpractice insurance in an amount set by the Presiding Judge ; and
f. Agree to mediate at least four (4) reduced fee or pro bono cases per year. Id.
There is a confidentiality requirement for mediator and party statements made during the mediation sessions. Id. This confidentiality is memorialized through a court mandated confidentiality agreement. Id. Mediators, however, must reveal information to the proper authorities if they feel that one of the parties may commit an act that would result in death or serious bodily injury. Id. Similarly, attorney-mediators shall reveal required information under Rule 1.6 of the Rules of Professional Responsibility. Id. Additionally, attorneys are held to a mandatory reporting standard under the Abuse and Neglected Child Reporting Act. Id.
When "a party fails to attend mediation without good cause shown, the court upon motion may impose sanctions, including but not limited to costs and attorney fees". Id. This subsection of the new rule falls under the Mediation Report section and implies, therefore, that the mediator will be the snitch. How will this snitch requirement impact the parties’ feelings of neutrality toward the mediator?
The rules require that the parties mediate in good faith. Id. But the rules fail to spell out how good faith will be enforced. For example, where there is a violation, who will snitch and to whom? Will the mediator be the tattler? Does a mediator tattle breach mediator neutrality? Does the mediation then end? Is a good faith violation an impediment to the mediation? May a good faith violator repent and return to the mediation in good standing?
The most potentially problematic rule is the impediment to mediation rule. This rule sets forth impediment screening and where an impediment is found, mediation shall not be "required". Id. This rule sets forth examples of impediments such as mental illness, cognitive impairment, drug use, alcohol use, prescription medication use, fraud, duress or undue influence, and domestic violence. If an impediment finding is made, it may be cause for termination of the mediation at the mediator’s discretion. Id.
This rule provokes queries such as who makes the "finding" that an impediment exists? Does the court make the finding? Does the mediator? What if one party alleges the other uses a controlled substance? What kind of investigation will ensue, if any? What kind of time limit will be imposed on this investigation?
Further, if a mediator is given power to proclaim under what facts a prescription medication is an impediment great enough to terminate a mediation, that power appears misplaced. The same is true for mental illness. Does not "impediment screening" raise issues of whether the mediator is practicing a profession other than mediation such as medicine by exercise of medical judgment? Are experts needed at this juncture to determine if a case may proceed into mediation?
Additionally, where there is a potential conflict of interest, mediators are required to either fully disclose the potential conflict or decline the mediation appointment. Id. These local rules prohibit a mental health professional-mediator from providing therapy or counseling to the parties. Id. An attorney-mediator is prohibited from representing a party during or after the mediation. Id. But when is this attorney-mediator mediating and when is this attorney-mediator practicing law? Is the mediator practicing law when she advises a party that he does not need legal counsel during mediation? Is a mediator practicing law when she drafts a mediation agreement between the parties as a legal settlement agreement?
Several states have addressed these ethical issues by including specific rules with regard to independent legal advice and impartiality. Fla. R. Cert. & Ct.-Apptd. Mediators 10.090. and Fla. R. Cert. & Ct.-Apptd. Mediators 10.070.
Other rules include a prohibition against an individual serving on both mediator and evaluator lists and rules for the evaluation process, generally. Fla. R. Cert. & Ct.-Apptd. Mediators 10.070.
The rule leaves open certain matters. Recall that one of the requisites to be a court approved mediator is that the candidate shall complete a court "approved" Divorce Mediation training program. Id. How will the court approve various divorce training programs? Is the XZY program adequate? Is Martha Norman’s program adequate or will any course approved by a national body such as the Academy of Family Mediators be sufficient for court approval? Which privatized certification body’s rules might we select?
Another matter left open deals with mediator selection. Parties are allowed to select their mediator and if they do not, then the court will select for them. L.R. 15.18. But what time constraint will be placed on the parties for mediator selection before the court will step in to select?
This program raises issues surrounding how to ensure quality mediation for the citizens of Illinois. Within the court mandated programs such as this one, trial courts have sought to ensure quality mediation through local rules and through judicial oversight. Should these rules for court mandated mediation be uniform statewide. In privatized mediation should there be regulation and if so under what criteria and by whom?
There are a number of reasons to consider a uniform, statewide scheme for regulating mediations.
First, regulation of the mediation field is needed to protect consumers from incompetent and unethical mediation services. Donald T. Weckstein, Mediator Certification: Why and How , 30 USF L. Rev.757 (1996).
Second, if this is indeed a new "profession", the mediation profession should be accountable for itself. Id. It should accept the responsibility for the delivery of quality mediation services in all mediation arenas whether they be privatized mediation or court annexed. Id.
Finally, what previously was viewed as a weak market has gained greater growth not only as an adjunct to the court but also as a serious market contender with all the attendant financial incentives.
The Impact of State Legislation
Because mediator certification legislation has been introduced in the Illinois General Assembly during the past two legislative sessions, we might consider the impact this legislation might have at the local level if passed. Senate Bill 835 proposes a Divorce Mediator Certification Act. Senate Bill 835. If passed, the Act would prohibit a person from holding himself or herself out as a certified divorce mediator unless he or she is certified by the state committee on dispute resolution created by the Act.
It should first be noted that the Act apparently would not preclude non-certified mediators from serving in the Eighteenth Circuit program.
On the other hand, the Eighteenth Circuit might change its rules to require its mediators to be certified under the Act. If it were to do so, the Eighteenth Circuit would have to consider what might be gained from adding such a requirement to its list of qualifications for approved mediators.
In at least one respect, the list of qualifications for state certification under the Act are less onerous than the Eighteenth Circuit qualifications.
While both the Act and the local rules require the mediator to complete an approved training program and to carry malpractice insurance, the local rules require that the mediator hold a graduate degree in one of several fields and the Act has no educational requirement. S.B. 835; L.R. 15.18 Thus, some mediators certified under the state Act conceivably would not meet the qualifications for approval under the local rules.
The procedures for Illinois state certification, however, do contain two elements that do not have a matching counterpart in the local rules. The Act creates a single, statewide "mediator certifying organization." S.B. 835 On application to the mediator certifying organization, a candidate for certification is assigned to one of three tracks, depending on the applicant’s experience and training. S.B. 835. Depending on this placement, the mediator certifying organization will then prescribe the training and experience necessary to allow the applicant to participate in a "performance evaluation", which consists of having the applicant conduct a real or simulated mediation while observed by two certified mediators. S.B. 835.
Thus, the Eighteenth Circuit might derive certain benefits from adding state certification to its local requirements if the bill passes. Most importantly, it would be assured that its mediators had a certain level of experience and had their mediation skills evaluated.
On the other hand, while the Act specifies criteria to be used in the performance evaluation, certification, in the final analysis is left to the subjective judgment of the two evaluators. This subjectivity would become all the more problematic if the certification process were to be captured by a group of individuals who subscribe to a particular model of mediation. This evaluation would heighten the potential to judge a candidate unfairly, particularly where there is but one certifying organization. This organization would have "an opportunity to slow or perhaps halt a candidate’s quest for a credential". Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S. F. L. Rev. 723 (1996). Therefore, it remains to be seen whether the certification process prescribed by the Act will result in producing a sufficient number of "certified " mediators to satisfy the needs of the Eighteenth Circuit.
The judges, attorneys and non-attorneys of the Eighteenth Circuit are to be commended for their hard work and thoughtfulness in creating a meaningful set of rules for our new mediation program.
The subject of this article is an important topic for continuing dialogue.
Your comments and suggestions are encouraged.
James J. Alfini is a Professor of Law at Northern Illinois University where he teaches constitutional law, mediation theory and practice, and related courses. He served as Dean of the NIU College of Law for six years. He is the Vice Chair of the American Bar Association Dispute Resolution Section. He received his Undergraduate Degree in 1965 from Columbia University and his Law Degree in 1972 from Northwestern University.
Martha Norman is a Sole Practitioner in Oak Brook. Her practice is concentrated in family law, estates, trusts, and intellectual property law. She is a member of the DCBA’s Family Law and Children’s Advocacy Committees. She received her Undergraduate Degree in 1965 from Elmhurst College, her M.T. (A.S.C.P.) in 1966 from Northwestern University Medical Center and her Law Degree in 1994 from John Marshall.