In courts across the nation, mediation has become a standard part of the judicial process, particularly with regard to child custody and visitation issues. The National Center for State Courts estimated in 1994 that there were approximately 205 court programs in the United States offering mediation services for divorcing parents, and this number is growing. In 1998, 19 of the 102 counties in Illinois had mediation programs by circuit rule or administrative order.
It should be emphasized that this study looked at published rules and procedures. Some circuits do not have local court rules, but use informal mediation referral procedures instead; these are not covered in this study. In addition, alternative dispute resolution programs that are related to domestic relations matters, such as attorney-client fee dispute programs, but not directly related to custody and visitation, are not addressed. Additionally, certain distinctions that are not commonly addressed in rules, also are not addressed in this study. For example, one program has a special provision, not covered in local rules, for pro bono mediations by local law school faculty. Other programs may occasionally mediate removal of children from Illinois or financial matters.
This study surveyed court rules and procedures to (1) identify where courts are utilizing mediation in custody and visitation matters during divorce proceedings and (2) analyze those rules and procedures with regard to (a) qualifications for court-approved mediators, (b) provisions for confidentiality of mediation sessions, (c) preclusions pertaining to conflicts of interest, and (d) management of mediation where domestic violence has occurred.
Statutory Authority for Mediation
Statutory authority for the court to order mediation is provided in the Illinois Marriage and Dissolution of Marriage Act. Circuit and county rules/administrative orders cite various sections of the Act. These sections are cited below:
750 ILCS 5/602.1b
For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct than an investigation be conducted pursuant to the provisions of Sections 605.
750 ILCS 5/607. 1c(4)
Enforcement of visitation orders; visitation abuse:
After hearing all of the evidence, the court may order one or more of the following:
(4) Counseling or mediation, except in cases where there is evidence of domestic violence, as defined in Section 1 of the Domestic Violence Shelters Act, occurring between the parties.
750 ILCS 5/102
Purposes; Rules of Construction (in relevant part):
This Act shall be liberally construed and applied to promote its underlying purposes, which are to:
(2) strengthen and preserve the integrity of marriage and safeguard family relationships;
(3) promote the amicable settlement of disputes that have arisen between parties to a marriage;
(4) mitigate the potential harm to the spouses and the children caused by the process of legal dissolution of marriage; and
(5) make reasonable provisions for spouses and minor children during and after litigation;
(7) secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and afterthe litigation...
Court-referred mediation (sometimes called court-mandated or court-annexed) is a process whereby a judge - before whom child custody and/or visitation issues are pending - may order parties into mediation. A mediator is then selected in accordance with the county’s procedures.
Mediation is an informal process in which a neutral third person (the mediator) helps others resolve their dispute. The mediator’s role is to facilitate communication and assist the parties in negotiating their own settlement. Unlike a judge or arbitrator, the mediator does not have the power to impose a solution. Mediators do not make recommendations to the court or others as to outcomes. (Note, however, that in some jurisdictions certain individuals act as mediators in some cases and as evaluators in others.)
In most court-referred mediation of divorce cases, the focus is on creating a future parenting plan. During the mediation process, parties can develop new communication skills that can help them maintain or develop a different post-marriage relationship with each other. Parties are also more apt to comply with agreements that they themselves developed.
In court-referred mediation, judges have authority to require that parties participate in mediation. The court decides what issues will mediated. Generally the only issues referred to mediation are child custody, visitation, and sometimes removal (moving the child to another state). However, some local rules may permit parties to mediate other issues as well if both they and their respective attorneys agree. Following mediation, the case resumes its litigation posture. Matters resolved in mediation are included in agreed orders. Contested issues are then resolved either through negotiation (without the aid of a mediator) or by judicial ruling.
In addition to court-referred mediation studied here, which deals only with a limited range of issues, divorcing couples may elect to engage in private mediation. In private mediations, the parties determine the range of issues to be resolved (often including financial matters typically not included in court-referred programs) and work with a mediator who may or may not be on a court-approved list. Also, in private mediations the parties and the mediator agree on the rules that govern the process and may not enjoy the protections (e.g., confidentiality) provided by court rule.
The Four Ares Studied
1. Qualification of Mediators
The first factor analyzed in this study is qualifications required of mediators on court-approved lists. All programs require advanced degrees and specialized training in family mediation. Some also address continuing education, liability insurance and work experience in mediators’ related disciplines.
In summary, all circuit or county mediation programs require mediators to hold either a law degree or an advanced degree in either the human services or the behavioral sciences. Specialized training in family mediation that is approved by the court is also required. Most training requirements specify a minimum of 40 hours. Additional hours particular to screening for domestic violence and other impairments which may interferer with the parties’ ability to mediate fairly and safely is required by the programs for the Kane, Kendall, DeKalb, and McHenry County. Cook County mediators have training in the area of metal health, including domestic violence issues and other impairments.
Continuing education is required in Saline, Williamson, Champaign, McLean, Livingston, Woodford, Kane, Kendall, and DeKalb Counties, and although not required, is provided in Cook County. Liability insurance is required in all counties except for Champaign, Cook, Livingston, McLean, and Woodford, whose rules are silent on this requirement.
Saline and Williamson Counties require mediators to have three years work experience in their professional discipline. Livingston, McClean, Woodford Counties as well as Kane, Kendall and DeKalb Counties require two years of work experience in their related disciplines.
The second factor analyzed in this study is confidentiality of mediation communications. To assist parties in engaging in full and frank discussions, most mediation rules prohibit a mediator from testifying about anything that happened in the mediation. There is a rather broad range of interpretations and exceptions to this general rule.
In summary, all Illinois court-referred family mediation programs regard confidentiality as essential to full disclosure by the parties in mediation, which, in turn is regarded as essential to settlement. All programs provide that information obtained from and about the parties through the mediation process is confidential, unless an exception applies. However, the mediation programs vary greatly when it comes to exceptions to confidentiality, and allow for both broad and narrow interpretation by the courts
The broadest exception to confidentiality is provided by Kane, Kendall, and DeKalb Counties, whose circuit program provides that the mediator may be subpoenaed by leave of the court for "good cause shown." This exception to confidentiality is left up to the interpretation of the court and the discretion of the judge. No other exception to confidentiality is so broad. All other mediation programs provide some limitation on the circumstances for allowing disclosure.
Somewhat broadly stated is McHenry County’s exception to confidentiality which provides that admissions, representations, statements, and other communications are not confidential if there is "any" act of violence committed against another during mediation, or if there is "any intent" to commit harm against another that may result in bodily harm. McHenry County’s exception to confidentiality also provides that while mediation is in progress, the mediator may report to an appropriate law enforcement agency any information revealed in mediation reasonably necessary to prevent an individual from committing an act the is likely to result in imminent, serious bodily harm to another. Notification to persons endangered is not considered a breach of confidentiality. The language "harm to another" does not appear to limit the scope of those in anger to just parties, but rather could be interpreted to encompass anyone in society. In McHenry County,, confidentiality does not apply to any communication which reveal evidence of abuse or neglect of a child as well’ furthermore, attorneys acting as mediators are to be held to the mandated reporting requirements of the Abused and Neglected Child Act (ANCRA, Ill. Rev.Stat., Ch23, Section 2051), which applies to health professionals.
Cook County’s exception to confidentiality is broad enough to include any person who may be in imminent danger. Also somewhat broadly defined is DuPage County’s exception to confidentiality which provides that a mediator shall reveal information when it appears necessary to prevent a party from committing an act that would result in death or serious bodily harm. Attorney mediators are governed by their confidentiality rules pursuant to Supreme Court Rules of Professional Responsibility and therapist mediators are governed by the Abuse and Neglected Child Reporting Act.
A more narrow exception to confidentiality is provided by a standard of "clear and imminent danger." Saline, Williamson, Champaign County, McLean, Livingston, and Woodford Counties except confidentiality when there is a "clear and imminent danger to an individual or to society." In these counties the standard is restricted to a harm that must be clear and imminent, as compared to McHenry County’s "any harm" standard or DuPage County’s "any act resulting in death or serious bodily harm." However, interviews with administrates, judges, or other in the counties found that the language of the mediation programs was liberally construed and the terms "clear and imminent" were subjectively interpreted. Therefore, the "clear and imminent" standard may be subjective enough to encompass many circumstances, and when coupled with the broad express language to include those in society, may not be that narrow of an exception after all.
The programs of Boone, Winnebago, Kankakee County and St. Clair Counties provide an exception to nondisclosure only when there is a clear danger of imminent harm to a "child or to a party." (St. Clair County refers to participant instead of party). In Cook County, if the preliminary judge has reason to believe that a child may be in imminent danger, the occur may order the parties to an immediate interview with the Marriage and Family Counseling Service.
Confidentiality can be waived by the parties in some counties. Saline, Williamson, Champaign, McLean, Livingston, Woodford, Boone, Winnebago, McHenry Counties allow confidentiality to be waived by informed consent of both parties. All other family court mediation programs have no language pertaining to the issue of waiving confidentiality.
Each county’s family court-referred mediation program attempts to provide a setting where parties can negotiate their issues in a confidential setting, and feel assured that their honest discussions will not be used against them. Each program provides that mediators cannot be called as witnesses and that the mediation sessions are confidential. However, where bodily harm or danger is present, each county provides its own standard for breaching confidentiality. It could be said that while mediation provides a neutral, confidential forum for divorcing parents to work out their child custody and visitation disputes, at a minimum, the courts of Illinois will not allow the mediation arena to provide protection to those committing acts of violence.
3. Conflict of Interest
The third factor analyzed in this study is conflict of interest. Almost all the programs address the issue of a mediator’s relationship with parties outside the mediation, but they define it differently and require various responses.
In summary, many county mediation programs address conflicts of interest between parties and mediators before, during and/or after the mediation process. Disclosure to the parties of any conflict of interest on the part of the mediator is required in all counties, except for St. Clair, whose rule is silent. However, even if none of the rules addressed this subject, the inherent nature of mediation as a fair process as well as the ethical conduct of mediators would prohibit mediation from going forward in a situation where bias or conflict of interest was present.
DuPage County provides that a conflict of interest compels a mediator to decline or disclose to attorneys, said disclosure possibly resulting in removal as mediator.
Saline, Williamson, Champaign, McLean, Livingston, Woodford, Kane, Kendall, and DeKalb Counties require a mediator who has represented or had a prior professional relationship with one or both of the parties, to disclose the prior relationship to the parties. Each party must consent to allow that mediator to mediate.
Kane, Kendall, and DeKalb Counties also require disclosure to and consent by the parties where a mediator knows or should have known that another attorney or therapist associated with the firm or agency would be prohibited from undertaking the mediation. Champaign County and McHenry County require disclosure of nonprofessional relationships as well. Champaign County also includes that contact between the mediator and relevant third parties, including the parties’ attorneys, must be disclosed. DuPage County expands to include personal or economic relationship with either party, any child, step-parent, other relative, counsel or anyone else involved in the case.
During the mediation process all programs requiring procedures for conflict of interest provide that the attorney-mediator may not represent either party in any matter, nor may the therapist-mediator counsel either party. Once mediation is completed, the counties vary on their prohibition of professional relationships between mediators and parties. Restrictions upon attorney-mediators and therapist-mediators vary within each county as well.
Attorney-mediators may not represent either party after the completion of the mediation process in Champaign and Cook Counties. They are restricted from representing either party for two years after the mediation process in McHenry County. Attorney-mediators are restricted from representing either party in disputed "between" the parties in Sale, Williamson, Kane, Kendall, DeKalb, McLean, Livingston, Woodford, and DuPage Counties. All other counties are silent with regard to lawyers engaging in a professional relationship with either of the parties after mediation ends.
Therapist-mediators may not counsel either party after the completion of the mediation process in Champaign, Cook and DuPage Counties. Therapist-mediators are restricted from counseling either party for a period of two years after the completion of the mediation process in McHenry County; and therapist-mediators are prohibited from counseling either party for 12 months after the mediation process ends in Saline and Williamson Counties. All other counties are silent with regard to restrictions on therapist-mediators engaging in a professional relationship with either party after the mediation process in completed.
4. Mediation and Domestic Violence
The final factor analyzed in this study is mediation and domestic violence. Across the nation opinions varied greatly regarding how couples who have experienced or are experiencing domestic violence should participate in mediation - if at all. Almost all the Illinois programs address the issue, but they define it differently and require various responses.
In summary, in cases involving domestic violence, mediation programs vary as to whether mediation should occur at all, and if so, under what conditions. DuPage, Kane, Kendall, DeKalb and McHenry Counties require mediators to screen for impairments affecting the parties’ ability to mediate safely and competently. Mediators may terminate mediation if the mediator believes the parties will not be able to negotiate fairly and safely. Cook County mediators are not required by local rule to screen for impairments such as the presence of domestic violence; however, the county’s policy is to train mediators to screen for and handle such matters, evaluating them on a case by case basis.
Champaign, Boone, Winnebago, and Kankakee Counties require suspension of mediation if past or current child or spousal abuse has not been addressed and resolved. McLean, Livingston, and Woodford Counties will not permit mediation if there are allegation of child abuse, or is such abuse is evident to the judge or if the parties will be harmed by the mediation process. Cook County provides determination of mediation on a case by case basis. All other counties are silent with regard to domestic violence.
Conclusion and Suggestions
for Further Study
This study accomplished the goal of cataloging the various written rules and procedures for court-referred mediation of domestic relations cases involving custody and visitation matters. It found remarkable similarity in both the broad scope of rules and great diversity in their detail.
With this baseline catalogue in place, it is now possible to consider additional questions. Among them:
What additional programs are in operation that are not currently governed by written procedures?
How many cases are being mediated in these programs?
What is the practical impact of the differences in how the programs are written?
What is the impact of these programs? For example:
How much do they cost and how much do they save the parties and the courts?
How satisfied with the programs are divorcing parents, judges and lawyers?
What impact do they have on court time required to close divorce cases?
Do mediation programs ameliorate the long-term effects of the divorce experience on children of divorce?
Now that there is a baseline of information on the court rules for domestic relations mediation programs that are in place in Illinois, further study of the above questions, and others, can be designed.
Counties With Mediation Programs
The Illinois counties of Saline, Williamson, Champaign, Livingston, McLean, Woodford, LaSalle, Kane, Kendall, DeKalb, Boon, Winnebago, DuPage, McHenry, St. Clair, Kankakee, and Cook have formal mediation programs developed by local rule or general order.
The counties of Fulton, Hancock, Knox, McDonough, Warren and Henderson have no formal mediation programs, however, they utilize mediation on a case by case basis.
Copyright Permission: "Reprinted by permission of the Center of Conflict Resolution (CCR)/ the Center for Analysis of Alternative Dispute Resolution Systems (CAADRS). Copyright 1998 Center for Conflict Resolution, Chicago, Illinois."
This article was published in part with the permission of the author and Center for Analysis of Alternative Dispute Resolution Systems (CAADRS). For the complete text of the article, which includes a breakdown of each program in every county having a mediation program, see CAADRS’s website at www.caadrs.org/studies/domrel.htm.
Carol A. Nolan practiced family law and mediation for several years in both DuPage and Kane Counties. Carol initiated this comprehensive study as a 3rd year law school student in 1995, and updated the study in 1999 at the request of the Center for Analysis of Alternative Dispute Resolutions Systems. Carol currently practices general law in DuPage County concentrating in probate and estate planning.