There continues to be much discussion about ADR programs and processes available to practitioners in DuPage County. As times goes on, more new programs continue to be developed. In an effort to clarify existing ADR programs in DuPage County, and which processes are used in what types of cases, the ADR Committee of the DuPage Bar Association prepared this article to keep people informed of the growing options for ADR in our judicial system and in other venues.
A. ADR IN OUR JUDICIAL SYSTEM
One of the older, more established ADR processes in DuPage county is mediation. There are three mediation programs that exists in the DuPage County Courts. One program is for non-family civil cases, known as the Court Annexed Mediation Program. Another program is for divorce cases, better know as the Court Referred Divorce Mediation Program. A third program was developed to offer mediation services to never-married parents, known as the Never-Married Mediation Program.
1. Court Annexed Mediation In Civil Court
The Court Annexed Mediation Program, supervised by Judge Kilander, Presiding Judge of the Law Division, is offered in courtroom 2014, and serves non-family civil cases where the complainant is seeking exclusively money damages in an amount in excess of eligibility for Mandatory Arbitration, or over $50,000. DuPage Local Court Rules, Art. 14, Court Ordered Mediation For Civil Cases, Rules 14.01-14.20 (1996) establishes the requirements for and specifics of the program.
This mediation program is a voluntary process, where those who choose to participate are required to attend with their representative and "mediate in good faith." Id. at 14.01. The people involved in the mediation process must have full and absolute authority to resolve all issues. Id. at 14.08(a). The process is confidential in that parties and the mediator are prohibited from testifying to what occurred and was said during the process. Id. at 14.02.
The mediators are private practitioners from the law community that serve by appointment of the Court on a per case basis. The parties may agree on the mediator, and can use any mediator they agree upon. If they cannot agree, the Court will appoint a mediator from the list of certified approved mediators kept by the Supervising Judge of the circuit. Id. at 14.06. A mediator certified by the 18th Judicial Circuit must: be a retired Illinois Judge or have completed a 40 hour mediation training program approved by the ad hoc Civil ADR Committee; be a licensed attorney and listed in good standing with the Illinois Attorney of Registration and Disciplinary Commission (ARDC); have had at least ten years of trial practice in Illinois; have filed an application certifying that the attorney is licensed to practice law in Illinois courts, the license is in good standing, and has been engaged in litigation for not less than ten years; get his or her application approved by the Chief Judge; and must have filed proof of legal malpractice insurance. Id. at 14.14. Applicants must also be certified by the majority of the ad hoc Civil ADR Committee of Judges sitting on a panel reviewing applications. Such a panel must consist of the Chief Judge of the Circuit, the Presiding Judge of the Law Division, the Presiding Judge of Chancery, the Supervising Judge for the Court Annexed Mediation Program, and any other judges designated to serve on the panel by the Chief Judge. Id.
Though a mediator is free to use whatever process and style that my work for a given set of parties and circumstances, in this mediation setting, a mediator often uses a "shuttle diplomacy" process with an "evaluative" mediation style. Shuttle diplomacy mediation, which is often referred to as "caucusing", is a process in which each party and his or her legal advisers are kept in separate rooms from the other parties and their counsel throughout most of the process. The mediator then shuttles back and forth between the individual rooms with each party, hearing information from the parties and their advisors and discussing proposals for settlement, all in an effort to further negotiations between the parties and reach final resolution.
An "evaluative" mediation style is where the mediator carries information to each party, interjecting his or her input as to the strengths and weaknesses of that individual party’s case or position, sometimes giving an opinion to the parties as to suggested settlement terms. This type of input from the mediator carries weight because the parties are aware that the mediator has information from all parties and their individual boundaries for negotiation. Given this, the parties can safely assume the mediator is directing negotiations based on this "big picture" perspective. Throughout the process, mediators probe parties, attempt to clarify positions, and push for reality as to worth of the case. Generally if resolution occurs, the mediator will draft the agreement between the parties immediately and the parties sign the agreement before leaving mediation.
Each mediator must perform their first mediation pro bono. Id. at 14.14 a) (5). Once he or she has done this, for future cases the mediator is compensated by the parties for services offered at a rate of $150 per hour. Upon appointment by the Court, the mediator is entitled to a minimum of one hour’s compensation, regardless of whether the case ever goes to mediation. Id. at 14.17. If any party has been granted leave to sue or defend as a poor person, the mediator is appointed to serve pro bono, without compensation from any party to the action. Id. All mediators in the court annexed program shall be entitled to appropriate Order or Judgment from the Court for fees and enforcement of such Order. Id.
2. Court Referred Divorce Mediation
Another type of mediation program in the DuPage County Court system is the Court Referred Divorce Mediation Program. This mediation program was established two years ago by the judiciary and the bar, and is supervised by the Presiding Judge of the Domestic Relations Court, presently Judge Equi. This program is governed by DuPage Court Local Rules, Art. 15, Rule 15.18, I. Mediation Program, sec. A-J (1998). Under this rule, the Court may order parties to mediate in pre- or post-judgment divorce cases having contested issues of parental responsibility, custody, visitation, removal, access to children, or other non-financial issues arising in a divorce case. Id. at sec. A.(1).
The process is informal and non-adversarial. The role of the mediator is to facilitate parties’ communication in an effort at reaching "mutually acceptable agreements". Id. at R. 15.18, I. Though the Court can order parties to mediate, parties are expected to engage in the process in "good faith", and the attorneys are expected to encourage this. Id. at sec. C.(3).
The Court should not order mediation if it determines an "impediment to mediation" exists in the case. Id. at A.(3). These impediments may include but are not limited to domestic violence, child abuse, mental illness, cognitive impairment, drug use, alcohol use, prescription medication use, physical impairment, fraud, distress or undue influence. This impediment exception requires the Court to make inquiries of counsel and/or the parties concerning the possibility of an impediment, and requires mediators to otherwise screen for an impediment if the case is ordered to mediation. Id. at A.(3) and (4).
The process is a confidential process in that the mediator and the parties are barred from testifying as to any statements made in the mediation sessions, and the mediator and his or her records, file, and work product may not be subject to subpena by a party, unless an exception is found by the Court. Id. at F.(1). General "exceptions" to confidentiality in family mediation is if the Court or the mediator determines that harm may result to children, a party, or another individual. Id. at E.(1).
The divorce mediators are private practitioners from the legal and mental health community that serve on a case by selection through agreement by the parties or through appointment by the Court. Id. at C(1). All mediators, whether chosen by the parties or appointed by the Court, must be from the list of qualified mediators kept by the Court in the Domestic Relations Division. Parties and/or their attorneys may select a mediator by agreement from the list of qualified mediators. The mediators in the divorce mediation program must be approved by the Chief Judge and the Presiding Judge of Family Court. Id. at B.(1). Every mediator must meet minimum qualifications, including the following criteria: completed 40 hours of divorce mediation training through a training program approved by the Court, which includes training on impediments to mediation; completed additional training offered by the Court from time to time; is an attorney or holds a graduate degree in the fields that include psychiatry, psychology, social work, human development, family counseling, or another behavioral science degree substantially related to marriage and family interpersonal relationships, or other degree program otherwise approved by the Presiding Judge or his or her designee; if licensed, maintains the license while listed as a mediator with the Court; must maintain an office in DuPage County; must produce evidence of malpractice insurance; and shall agree to mediate at least four cases per year at a reduced fee or on a pro bono basis, as identified by the Court. Id. at B.(1), (a) - (g).
Parties generally are in the same room throughout the process. The parties may be put in separate rooms if it will facilitate better joint decision-making, with the mediator "shuttling" between the rooms, facilitating negotiations between the parties. The parties’ attorneys are not with the parties during the mediation process. The mediator serves more as a referee of communication during the process, versus in non-family civil mediation where the mediator serves more as an evaluative guide during the process. Divorce mediators typically employ a "facilitative" mediation style, with a goal of facilitating communication between the parties, that allows them to identify the issues needing to be resolved, explore options for resolution, and finally reach their own agreements on those issues. Parties should be encouraged by the mediator to consult with their attorneys before mediation begins and between sessions. Any agreements reached in mediation by the parties are sent by the mediator to the attorneys for their review and approval. Finally, if approved, agreements are given to the Court for issuance of an Agreed Order. If the parties do not reach resolution in mediation, they must next proceed to a custody evaluation, as laid out in DuPage Local Court Rule, Art. 15, Rule 15.18, II. Evaluation Program.
A mediator may collect fees per hour at a rate set from time to time by the Court. Fees are limited to a maximum of three hours for mediation sessions plus one hour for administrative services and fees, capping charges to parties at a four hour maximum, Id. at sec. I., generally sharing this cost unless otherwise Ordered by the Court. The result of this language on fees is that the mediator collects a flat fee from the parties in exchange for up to four hours of time spent on the case. Parties may continue in the mediation process subsequent to the three hours required if the parties, with approval from their attorneys, agree to pay additional dollars for the additional hours spent in mediation, or if the mediator agrees to continue without additional fees. Presently, the rate set by the Court is $140 per hour. Some mediators collect each party’s fee of $285 at the beginning of the first session of mediation. Though it is not laid out specifically in the rule, most mediators require parties to attend either two, one and one half hour sessions, or three, one hour sessions.
3. Family Mediation For Never-Married Parents
The third mediation program active in DuPage County Courts is the Family Mediation Program for Never-Married Parents. Presently, this program is supervised by Judge Dudgeon and serves parties having their cases heard in courtroom 2003. The mediators are hired as employees of the Department of Psychological Services, either full or part time, and are paid salaries versus receiving an hourly wage for their mediation services, as in the other Court mediation programs. This program is available free to the parties and to the Court through a grant offered by the Illinois Department of Public Aid. DuPage County is one of only two counties in Illinois to receive funding for this program of mediation services to never-married parents.
Mediation is conducted in the courthouse, "on-the-spot", immediately following an Order by the Court for the parties to mediate. The mediators take the parties to a conference room away from the courtroom, to hold the one-time mediation session. The mediators employ a facilitative style of mediation, much like the divorce mediators in the divorce mediation program. Also similar to divorce mediation, the parties come together, without their attorneys, to attempt resolution of non-financial issues pertaining to their children in common. If they reach agreement, an Agreed Order is entered immediately by the Court. If they do not reach agreement, parties appear before the Court for Judgment on the issues.
Arbitration has been a long-time ADR process used throughout the United States, Illinois, and its Courts. DuPage County Courts have two arbitration programs serving parties in the judicial system. One program is known as the Mandatory Arbitration Program, which is utilized in civil, non-family court cases. The other arbitration program presently existing in DuPage county is known as the Fee Dispute Arbitration Program, which is utilized for fee disputes in Family Court between attorneys and their clients.
1. Mandatory Arbitration Program
The Mandatory Arbitration Program has been an ADR process in DuPage County since creation of DuPage Local Court Rules, Art. 13, Mandatory Arbitration, Rules 13.01 - 13.13 (1989). This arbitration Program is used in all non-family civil actions having claims exclusively for money in an amount exceeding $5,000, but not to exceed an amount set by the Illinois Supreme Court, presently $50,000. Id. at 13.01(b). The administrative staff for the arbitration program is housed on the second floor of the DuPage County Bar Building. It is financially supported by the Illinois Supreme Court, and governed under Supreme Court Rules 86-95.
In this program, generally three approved arbitrators serve on a panel for each case. Under certain circumstances, such as the lack of availability of three arbitrators, parties may stipulate to using a two-arbitrator panel. Every panel must have at least one person who serves as the chairperson and is "chair-qualified", Id. at 13.02 (d). which requires that the arbitrator has been engaged in trial practice for a minimum of five years, or is a retired judge, or has heard twenty arbitration cases. Id. at 13.02 (b). This chairperson is the convener of the hearing.
The panel of arbitrators is charged with a duty of hearing evidence in the case, which includes testimony and written documentation admitted into evidence, and making a decision as to the outcome of the issues in dispute. Immediately prior to beginning the hearing, the Chair of the panel takes stipulations by the parties and their Rule 90 (c) documentary evidence. The hearing process is an expedited trial process, consisting of opening statements by the parties, the parties’ cases in chief, including direct and cross examination of witnesses, and closing statements. The hearings are limited to two hours in time, unless the parties notify the Arbitration Administrator at least 14 days prior to the hearing. Id. at 13.03(g). Arbitrators are required to issue their finding in writing and submit it to the Arbitration Administrator immediately after the hearing, prior to ending their service on the panel. Id. at 13.07. If a unanimous finding cannot occur due to differences in the arbitrators’ opinions, then the findings by the majority shall prevail, with the dissenting arbitrator merely signing his or her name signifying that he or she is dissenting. Findings by arbitrators are simply stated in terms of finding for the complainant or the respondent for the specific dollar amount. Awards may not be accompanied by rational of any kind. Any party may reject the panel’s award. Id. at 13.08. Rejection must be in compliance with Supreme Court Rule 93. Id. If an award exceeds $30,000, a rejection fee of $500 must be paid. Id. at 13.08 (a).
The bulk of cases heard by arbitration panels are personnel injury and contract violation cases. Motions, objections, and other matters, including motions to interpret rules, advance or postpone hearing, consolidate cases, vacate Judgment, enter Judgments, and all post-Judgment proceedings are heard by the Supervising Judge prior to the arbitration hearing, which enables the arbitrators to concentrate on hearing the evidence and trying the facts. Id. at 13.12. A formal record is not made of the hearing, however, a party may arrange for a stenographic record of the hearing, at the parties’ expense. Id. at 13.05(b). Notice to other parties of this intent is required, and the other parties may have a transcript prepared as well at each parties’ own expense.
The Supervising Judge of the program reviews all applications and makes appointments of arbitrators. Presently Judge Lucas supervises this program. For arbitrators to be approved and appointed by the Court, they must have met certain qualifications and criteria. An arbitrator must be a licensed attorney, and have attended an approved mandatory arbitration training offered from time to time in DuPage County and other counties having a similar program. Id. at 13.02(a). An arbitrator also must: have read and is informed of the rules of the Supreme Court and the local rules relating to mandatory arbitration; have been engaged in the practice of law for a minimum of one year or is a retired judge; and reside, practice, or maintain an office in DuPage County. Id. Each arbitrator is paid a flat fee of $75 per case. Arbitrators in DuPage county generally are scheduled to serve on two panels per day, the first panel scheduled from 9:00 a.m - 11:00 a.m. and the second panel from 11:00 a.m. to 1:00 p.m.
2. Fee Dispute Arbitration Program
The Fee Dispute Arbitration Program is governed by DuPage Local Court Rules, Art. 15, Rule 15.19, Expedited Matrimonial Fee Arbitration Program, sec. 15.19.01 - 15.19.18 (1977). This program handles cases with fee disputes between clients and their attorneys in family court. Id. at 15.19.01. The goal of this program is to resolve disputes between family attorneys and their clients as to disputed fees charged for services rendered in an expedited process. DuPage County Family Court began its Fee Dispute Arbitration Program in 1997, when the first group of arbitrators were trained to serve on panels of three.
The process requires that once a Petition For Fees is filed by an attorney pursuant to 750 ILCS 5/508(c), the fee dispute shall be submitted to mandatory arbitration unless the client or counsel "affirmatively" opts out of the program. Id. at 15.19.01. To opt out, the client or the attorney must make this request in writing when the Petition for Fees or Response is presented to the Court. Id. at 15.19.04(a). Under the local rule, an attorney may not ask a client to enter into an agreement which restricts the right of the client or the client’s assignee to participate in a fee dispute arbitration hearing, or which relieves the attorney from the obligation to participate in a fee dispute hearing under this local rule. Id.
A hearing in front of the panel must be held on disputes over $500, and shall be no more than 60 minutes. Id. at 15.19.17. No hearing occurs for cases of $500 or less. The panel bases its decision on the Petition, Response, and other written documentation. Id. at 15.19.15(b). The hearing is more informal then when heard by the Court. Id. at 15.19.17. Much like mandatory arbitration in civil cases, the fee dispute hearing is an expedited trial, and is expected to take one hour or less. Id. The parties to an arbitration hearing are required to participate in good faith and in a meaningful manner. Id. at 15.19.04(d). The Court proceedings regarding the disputed fees shall be stayed until the conclusion of arbitration, and the attorney shall refrain from any collection activities relating to the disputed fees pending the outcome of the arbitration. Id. at 15.19.04(b). The rules of evidence need not be followed, and the proceeding shall not be recorded in any manner. Id. at 15.19.17. Neither party may recover costs or attorney’s fees incurred in preparation for or in the course of the fee arbitration proceedings. Id. at 15.19.18. Witnesses are afforded the same immunity as is applicable in civil actions. Id. at 15.19.10. Attorneys may disclose relevant work product without waiving its confidential nature for any other purpose. Id. at 15.19.11.
An arbitration hearing proceeds even in the absence of a party who, after due notice, fails to be present. Id. at 15.19.06. The failure of a party to be present, or be present individually or by counsel by the end of the arbitration hearing shall constitute a consent to the entry by the Court of a Judgment on the Award. Id. The panel shall require the present party or parties to submit evidence supporting their position before making any award. Any party who failed to be present at the arbitration may file a petition to the Court to vacate the Judgment for award of fees, and the Court in its discretion, in addition to vacating the Judgment may order the matter for rehearing in arbitration, and may impose a sanction of costs and fees as a condition for granting such relief. Id.
An award issued by the arbitrators is a determination in favor of a party. The award must be made by the arbitrators the same day as the hearing prior to the arbitrators being relieved from their duties as an arbitrator on the case. Id. at 15.19.07(a) and (b). The award shall dispose of all claims as to the disputed fees, and shall be unanimous or by the majority of arbitrators. Id. at (b). The award is a final award, and any party after its issuance may file a motion with the Court seeking entry of Judgment on the award. Id. at 15.19.08.
The three member panel of arbitrators must always consist of one family attorney or retired judge, who chairs the panel, and one non-lawyer individual having gone through the training. Id. at 15.19.15(a). Generally, the third panel member is an attorney who does not practice family law. The reason for the make-up of the panel is to give parties a balanced panel that can consider the issue of fees from all applicable perspectives. Arbitrators are appointed by the Court from the DuPage County legal and layperson communities, and all must attend the training offered by the DuPage Court. The arbitrators are paid by the Court, presently a flat rate of $50 per panel per day. Arbitrators are barred from testifying as to what transpired before them in any future hearing or litigation, and no reference to the arbitration may be made at trial. Id. at 15.19.09.
B. ADR WITHIN THE DUPAGE BAR ASSOCIATION
The DuPage County Bar Association, through its Professional Responsibility Committee, offers a Fee Dispute Resolution program for attorneys and their clients over disputes pertaining to attorneys’ fees. Either the attorney or the client may access the program for such issues as non-payment of fees or for claims pertaining to inappropriate charges or fees. Fee disputes heard through this program are disagreements over fees paid, charged, or claimed for legal services rendered by an attorney licensed to practice in the State of Illinois and practicing in DuPage County where there exists an expressed or implied contract establishing an attorney-client relationship. This definition specifically excludes those disputes where the Court has jurisdiction to fix the fee because a suit has been filed or where there is a pending petition for fees. Also the committee will defer any dispute while there is an ARDC complaint pending.
To start the process, an individual may file a complaint for fee dispute resolution. This complaint must be in writing and must be submitted on the complaint form provided by the program. The complaint consists of approximately 20 questions requesting information on why the attorney was hired, whether there was a Fee Agreement, and asking the specifics of this complaint pertaining to fees. This complaint is then forwarded to the Chairperson of the Professional Responsibility Committee. The Chairperson appoints one member of the committee to do fact gathering, or investigate the complaint, to obtain the specifics of the case. This investigator contacts the person who brought the complaint. This investigator then speaks to the respondent, asking this person to respond by giving their side of the case. The investigator then makes an attempt to resolve the issue before it moves to formal arbitration.
If the case does not resolve through the investigator’s efforts, the case is scheduled for an arbitration hearing. The Chairperson of the Professional Responsibility Committee appoints the investigator and two other attorneys from the Committee to serve on a three-person arbitration panel. Both parties have an opportunity to present their case and introduce evidence, including opening and closing statements, offering testimony of parties and witnesses, and questioning witnesses. At the arbitration hearing, strict rules of evidence do not apply.
The arbitration panel issues a written award within one week after the hearing. This award is a brief statement, merely indicating what party should pay what amount to the other party, if anything. The award is delivered in person or sent to each party. The committee and the arbitrators are required to maintain confidentiality regarding all fee dispute cases, except as otherwise required by law.
The arbitration process under this program is voluntary for both parties. The parties are required to sign an agreement to arbitrate, which includes an agreement that the decision by the arbitration panel will be binding on both parties. The ability to appeal or in any way have the arbitrators’ award reviewed is only through those few exceptions under the Arbitration Act, which are such claims as clerical error, fraud, or duress, not claims pertaining to the merits of the case.
In the event a party does not appear for the arbitration hearing, reasonable notice having been given, the hearing shall proceed exparte and the panel shall make an award after taking the evidence and hearing the arguments on behalf of the attending party. The party who fails to attend the hearing may move for reconsideration of the award on the basis of his/her failure to appear, in which case the panel shall reconsider its award only upon a showing of good cause on the part of the party who did not attend the arbitration hearing.
The Professional Responsibility Committee through the DuPage County Bar Association has available to anyone who wishes, procedural rules on the process and a packet of information and forms, which is all an individual would need to partake in the fee dispute resolution process.
C. MEDIATION WITHIN FEDERAL AND STATE AGENCIES
Administrative Agency Mediation
Anyone who practices before federal agencies or state Code agencies will encounter ADR. In fact, ADR opportunities are required of federal and state agencies, that receive federal funding. Many local government units also use ADR. Throughout the complaint process, public agencies offer numerous formal and informal opportunities to close their books on cases and settle a complaint. Agency motives may be mixed, however, a smart lawyer can use these ADR processes to their client’s advantage. It is in the client’s interest to research what ADR processes a particular administrative agency has in its arsenal.
1. Equal Employment Opportunity Commission/Department of Human Rights
Perhaps the most common example is the two processes called Mediation and Conciliation at the federal Equal Employment Opportunity Commission, and its Illinois counterpart, the Department of Human Rights. (Similar programs are also in place at the Cook County Human Rights Commission and the Chicago Commission on Human Relations.)
When a complainant files a charge of discrimination at any of these agencies, he or she is given paperwork to agree to mediation on a voluntary, non-binding basis, if the other party also concurs. There are good faith requirements, but also it must be said that if a settlement does not result, the mediation itself is valuable to an advocate as a measure of the other side and even as a "reality check" for one’s own client. The mediation generally takes just a couple of hours, costs nothing, and the results are confidential and not made a part of the investigating agency’s records. It either works or it doesn’t. Mediators are volunteers, usually social services professionals or attorneys, however, sometimes they are law students.
Agreeing to mediation stays the investigation process for a short time. The mediation usually takes place within just a few weeks of filing. It can therefore be an effective way to dispose of a low-damage case quickly and cost effectively for the client on an hourly rate basis. If the employee is still working for or has had a long tenure with the employer, it keeps things less adversarial where the parties feel betrayed, yet may continue to have an ongoing relationship with each other, much as — theoretically anyway — in family law. This mediation process is also an excellent place to request "feel good" equitable relief that doesn’t have to cost the employer anything: a neutral letter of reference, a change in official termination date, cleaning up a personnel file, an explanation or (rarely) apology, or just a safe place to vent. If the mediation fails, the agency launches its usual cumbersome investigation or, at the EEOC, the client can obtain the right-to-sue-letter. The rate of success of these mediations is reportedly high, which makes sense given their completely voluntary nature; people who are not interested in settling up-front do not agree to mediate to begin with.
It is also worth noting that even if an investigation takes place, the fact finder/investigator almost always tries to help the parties negotiate a resolution at the top of the fact-finding conference, or even by phone ahead of time. Unless very experienced, these investigators are usually not the most skilled mediators, however well intentioned or anxious to close a file they may be. At this stage, such quasi-mediation is generally not very effective, unless both parties’ lawyers are ready to lean on their clients and make it work.
Conciliation is offered once the agency has concluded its investigation and found evidence of discrimination. It is an opportunity to have an agency representative, the investigator or a staff lawyer expedite a settlement before a formal suit is filed, either by the agency or the complainant.
Again, both sides must agree to participate in conciliation. Again, it is a brief, one-time shot at avoiding trial. In some ways, it resembles a settlement conference with a Judge as much as it does mediation; the facilitator is an agency employee with an agenda not only to help resolve a dispute, but to clear the dockets. After all, there has been some fault finding, a long time has passed, issues and positions have been crystallized, and the remedies, while not officially limited to those available in the enabling statutes, lean more toward the formal, statutory remedies. Once a suite is actually filed, the Human Rights Commission also provides a channel for private mediation at a lower-than-normal cost to both parties.
2. Department of Children & Family Services (DCFS) Mediation
Another mediation process can be found in the Department of Children and Family Services (DCFS), when clients appeal a service decision made by DCFS to deny, amend, or terminate a service. Clients may participate in mediation prior to their appeal hearing required under Ill Rule 337, 89 Il. Adm Code 337, Sec. 337 (2000).
Under this rule, a person appealing a service decision may participate in mediation with DCFS. Two staff members from DCFS, the worker and another individual with authority to amend the decision, must participate in the mediation session. The client is allowed to have a legal representative present, or another individual for support or assistance. A private mediator, who is not an employee of the agency or the state, serves as the mediator on a case by case contractual basis. The mediation process is at no charge to the client. There is no limit to the number of sessions allowed, and the time frame for the required hearing is stayed while the parties are mediating. Generally, two to three sessions are typical over one to three months.
Like divorce and family mediation, the mediator attempts to keep the parties in the same room, unless this hampers negotiations. The mediator employs a "facilitative" style of mediation, facilitating communication between the parties to enable the parties to reach their own resolution. The scope of communications is open to all relevant information, to assist the parties in making informed decisions, and other individuals are allowed to participate in some or all of the process to allow informed decision making, and if it appears it will further the parties’ negotiations and resolution of the issues. Confidentiality afforded all individuals under the law must be preserved throughout the mediation process.
3. Department of Human Services
The Illinois Department of Human Services offers mediation to customers receiving services when they appeal a service decision made by the Department or one of its offices, such as the Office Rehabilitation Services. Mediation is offered prior to the administrative appeal hearing, in an effort to allow parties an ability to resolve the conflict prior to entering the more adversarial process of litigation through the administrative hearing. Much like DCFS and family law cases, mediation offers an ability for the parties, who often will be required to continue their relationship after the dispute has been resolved, to discuss their issues and settle amicably their dispute. Also like DCFS, professional mediators are hired on a case-by-case contractual basis, and if the parties resolve their dispute, the appeal is dismissed and the agency incorporates the agreement into its service plan for the customer.
ADR, particularly mediation, is a growing way for parties to actively be a part of expedited and/or amicable resolution of their disputes. ADR processes have been adopted on local, state, and federal levels, and is most often used for quick or amicable resolution of issues, particularly between parties who may want or be required to continue a relationship subsequent to their dispute. The success rate of mediated cases is high, and satisfaction of participants is higher; even those who did not resolve all issues report liking the process. ADR is here to stay and expanding its scope.
Special thanks for editing and additions: Judge Dudgeon, Judge Equi, Judge Kilander, Judge Lucas, and Attorneys Michael Calabrese, Brigid Duffield, Michael Scalzo, and John Sheahin.
Judy L. Hogan has been practicing law for 16 years, with an emphasis in the areas of family law, mediation, and child welfare. She has over 22 years of experience in child welfare, having served in a number of capacities, including as an Administrative Hearing Officer for DCFS.
Marti J. Sladek has a solo practice in Downers Grove and Wheaton. She received her B.S. from Kent State University (1968), her M.A. (Journalism) from The Ohio State University (1969), and her J.D. from Loyola University-Chicago (1994).