In April 2001, the Illinois Supreme Court entered an Order, effective immediately, entitled, "New Rule 99, Mediation Programs". To mediation practitioners, this comes as no surprise, yet the rule has been met with mixed reactions and leaves a number of questions. Illinois has long been toying with the idea of regulating in some way the practice of mediation, particularly the court-annexed mediation programs. Our Supreme Court began the effort when holding state-wide public hearings in 1990-1992.1 It appointed a rather impressive committee of individuals to hold these hearings and take testimony from a rather impressive list of experts and witnesses on issues pertaining to mediating divorce and family cases.2 Topics included a number of those listed in Rule 99, such as mediator qualifications and duties, issues to be mediated, confidentiality, intake procedures, termination of mediation, costs and fees, and reports of outcome and record keeping.3
From these hearings, the committee prepared a 32 page document entitled, Recommendations For Supreme Court Rules on Mediation,4 offering numerous recommendations as to how the practice of mediation in family cases could best be handled. This appointed committee produced recommendations that have been echoed nation-wide throughout the field of mediation. These recommendations also formed the basis for procedures (codified in rules or informal practice) in court-annexed mediation programs for over 30 counties statewide. Further, they formed the basis for several attempts at legislation, some appearing to codify much of the committee’s recommendations and others varying from the most narrowed perspective focusing only on court-annexed divorce mediation to a wider range certifying all mediators engaged in the practice of mediation.5
So, what is in this new Rule 99? It appears the court wants to know what the field and circuit courts are doing and what they would like to do. Little has been communicated by the court, verbally, through correspondence, or through the new rule, leaving practitioners and circuit courts unclear as to what Illinois’ highest court wishes. A look at the rule may better explain these queries. Below is my interpretation of the rule.
Rule 99 is no more than one and one-half pages long, quite condensed when compared to the report with recommendations submitted by its appointed committee in 1992. It mandates basically that "each judicial circuit electing to establish a mediation program shall adopt rules for the conduct of the mediation proceedings".6 If the circuit or county has not yet established any such program, the Chief Judge of the circuit is required to submit proposed rules governing the operation of the program.7 If the circuit is operating such a program at the time of the passage of Rule 99, it may continue the program; however, the circuit has up to one year from the effective date of Rule 99, or to April 11, 2002, to submit the rules governing the procedures of any operating program for the Supreme Court’s "review and approval".8 Any amendments after approval by that court must also be submitted for approval prior to implementing these amendments.9
Rule 99 requires local rules to address a minimum number of topics, which are: (i) types of cases that may be mediated under the program; (ii) qualifications of mediators and fees to be charged; (iii) procedures for scheduling mediation sessions (called "conferences" in the rule); (iv) how these sessions should be conducted; (v) requirements or limitations as to discovery; (vi) a party’s lack of participation in the mediation process and sanctions, if any; (vii) procedures for termination of mediation and reporting the status of any case back to the court; (viii) procedures for finalization of agreements; (ix) immunity and confidentiality; and (x) "mechanism" for reporting to the Supreme Court on the mediation program.10 This is the essence of Rule 99. It also appears that Rule 99 applies to all types of court-annexed mediation programs (the most common ones existing in Illinois are non-family civil and family), though the mediation processes for these different types of cases are quite different.
What are some more pressing questions raised by this Rule for family mediation court-annexed programs? One such question coming to the forefront is whether a mediator should be afforded immunity from liability, and if so, to what extent? Other questions waiting to be answered are: What should be the confidentiality privilege afforded the mediation process, if any, and what is the best process for terminating mediation and reporting the outcome to others, including the court? Other requirements listed in Rule 99 have already been addressed by many courts in local rules and appear to be consistent. In a broad sense, however, language and allowances vary greatly. Some consistent but varying provisions in local rules include mediator qualifications and compensation, issues that may be referred to mediation by the court, and though not specifically addressed in Rule 99, exclusion of cases from mediation due to incidents of domestic violence or other recognized impediments to mediation.
One requirement discussed greatly since Rule 99 was enacted is the need to address in local rules the immunity from liability for mediators. What type of immunity, if any, the court is wanting is unclear because no guidance has been given in the rule. Based on the fact that mediation is required, it appears that some type of immunity is expected. The question of the need for immunity and how extensive that immunity should be seems to evolve around how a mediator and his or her duties are perceived by the lower courts and the judicial system overall, and the desire to hold mediators accountable to some standard of good practice. When reviewing a number of the local rules throughout Illinois prior to Rule 99, few, if any, rules addressed this topic. Most professionals in the field of mediation appear to be leaning toward granting some type of immunity, and some talk has surfaced about granting the full immunity that is afforded a judge, particularly in the court-annexed programs. The rationale behind offering this far reaching immunity is based on common law immunity practices followed regularly by many courts.
An enlightening discussion on this topic can be found in the loose leaf handbook, with periodical updates, entitled Mediation: Law, Policy and Practice, 2nd edition, written by Nancy Rogers and Craig McEwen.11 In section 11:03., Mediator Liability and Immunity, emphasis is put on the type of acts performed by a mediator when considering mediator liability. According to Rogers and McEwen, courts have afforded individuals a "quasi judicial immunity" when individuals are performing judicial acts at the discretion of the court,12 or when these persons are performing acts otherwise performed by a judge, such as a guardian ad litem, or a mental health or psychological expert appointed to give an opinion.13 Their analysis would suggest that the popular holdings of courts are to offer some type of immunity from liability to court-appointed mediators.
The topic of confidentiality has also come to the forefront in reactions to Rule 99. Most Illinois local rules provide for some type of confidential privilege for the mediation process. These include generally keeping confidential statements made by the parties (particularly if disclosed by the mediator) and records, files, or other information or material held or created by the mediator for the purpose of serving the parties in mediation.14 A common prohibition against disclosure also found in many Illinois local rules and private mediators’ initial agreements to engage in the mediation process is the inability to call mediators as witnesses in any judicial or administrative proceedings.15 An often seen exception to any confidential privilege is if the mediator has concerns that harm may come to a child or others.16 The questions asked about confidentiality is what language will suffice or queries into what the court is looking for when requiring that confidentiality be addressed in Rule 99. Local rules vary greatly in language and extent of the confidential privilege granted, as is discussed in length with a comparative analysis of rules in a recent study funded by the Center For Analysis of Alternative Dispute Resolution Systems (caAADRs) and conducted and written by Carol Nolan, Esq., of Wheaton.17
Another question where the mediation profession and lower courts are waiting for guidance from the Supreme Court concerns the terms under which the mediation process can be terminated before all issues are resolved, and the reporting of outcomes by the mediator. Though local rules provide for termination of mediation, they differ as to who can terminate the process and when the process can be terminated. Some rules require a minimum number of hours the parties must spend in mediation before either party can terminate the process, or put limits on the time frame in which the mediation process must occur.18 Most rules, however, allow the court and/or the mediator to terminate the process at any time.19
Similarities exist with many local rules for mediator reporting of the outcome of mediation, though who gets the report varies from county to county, and the reporting of the negotiated agreements varies greatly as well. Most courts have created similar reporting mechanisms in the form of a Mediator Report, often merely requiring the mediator to check what status applies to the individual case being reported, e.g., resolved, some or all issues, no show, etc.. Some rules allow only a summary of the negotiations to be given only to the attorneys for the parties, requiring the lawyers to extract from this summary the actual agreements by the parties, and reduce these agreements to a more formal writing to be submitted to the court as an Agreed Order. Other counties allow for the mediator to create the more formal document of agreements, usually termed the Memorandum of Agreement, which lists the actual agreements, word for word, leaving little for the attorneys to decipher. Some court practices disallow the "agreements" to be sent to the Judge directly by the mediator or filed with the court. Instead, attorneys produce the final version of the agreement and submit this version in the form of an Agreed Order.
Mediator qualifications and compensation is very consistent throughout Illinois local rules governing court-annexed mediation. Most rules require a graduate degree in a mental health or psychological field or a law degree (with no requirement for the attorney to have practiced in a family related area of law). 20 Some counties have broadened the qualifications to include those who have a graduate degree in a behavioral science field or conflict resolution, or added a requirement that the mediator practitioners have a minimum number of years of work experience in their primary field of practice.21 Almost all rules require a minimum of 40 hours training in mediation, some specifically indicating mediation training in divorce and family conflict.22 Most require regular continuing education, with additional training on domestic violence or screening for whether a case is appropriate for mediation due to recognized impediments such as domestic violence, child abuse, mental illness, or substance abuse.23 Most local rules also set caps for fees charged by a mediator when mediating a court-referred case.
I am unaware of any inconsistencies as to what issues can be sent to mediation by the court. Presently, all local rules in Illinois limit the issues to non-financial children’s issues, some listing them out to typically be custody, visitation, and removal. Some rules allow for financial issues to be mediated if parties desire this and agree (some rules require attorney input as well).24 Almost all Illinois local rules allow exceptions to mediation in cases of domestic violence or other recognized impediments, however, language varies greatly.25
What will become of the more than 20 counties that have specific court-annexed family mediation programs remains to be seen. Some believe that the court will leave much of the language and regulation to the respective counties and circuits. Though my hope is that much that presently exists in many local rules stay (these provisions being very similar to that which was recommended by the Illinois Supreme Court’s appointed committee in 1992), some improvements and changes are likely to be required and should be welcomed, if for no reason, because the field of mediation is still young and very rapidly evolving as the years go on.
1 The Illinois Supreme Court began its study on child custody, visitation, and support disputes through an appointed committee. See, Report of The Illinois Supreme Court’s Study Committee on Mediation of Child Custody, Support, and Visitation Disputes. (Report in recommendation form submitted Sept. 15, 1992 to the Court).
2 Id., at page 4, Roster.
3 Id., See full report.
5 See: HB3353, LRB8813103Whksa, Family Mediation Act (introduced March 11,94); SB270, LRB8901115WHks, Family Mediation Act (introduced Feb, 2, 95); SB1850, LRB89108001LDmb, Divorce Mediator Certification Act (introduced Feb. 9, 96; HB1971, LRB9206434ACpc, Mediator Certification Act
6 Ill. S. Ct Rule 99, Mediation Programs, sec. (b)(1)(effective April 11, 2001).
10 Id., at (b)(2).
11 Nancy Rogers and Craig McEwen, Mediation: Law, Policy and Practice, 2nd Edition, Clark, Boardman, Callaghan (1994, and 1999).
12 Id. ch. 11, sec. 11:03, at 11.
13 Id. at 9.
14 Id. ch. 9, secs. 9:01, 9:02. (Also see, manual for Northern Illinois University Law Review, 10th Annual Symposium, Hot topics in dispute Resolution: What Advocates, Neutrals and Consumers Need to Know, held March 8, 2001, specifically, Carol A. Nolan, A Study of Court Rules for Custody and Visitation Mediation in Illinois, funded by Center for Analysis of Alternative Dispute Resolution Systems.
15 Id. See also Nolan, supra. note 14.
16 See Nolan, supra. note 14.
18 See, The 18th Judicial Circuit, DuPage County, Rule 15.18 I, Mediation Program, and The 1st Judicial Circuit, Saline and Williamson Counties, Court-Referred Divorce Mediation Program, Standards and Procedures.
19 See, 16th Judicial Circuit, Kane County, Rule 15.22, Family Mediation Program.
20 See Nolan, supra. note 14.
Judy L. Hogan has been practicing law for 17 years with an emphasis in the areas of family law and mediation, and has 25 years of experience in child welfare experience. Judy has logged over 3800 hours serving as a mediator, and is an approved national trainer of basic and advanced mediation skills.