The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

Mandatory Mediation in Joint Parenting Agreements: IRMO Duffy
By Patrick J. Ahern, J.D., L.C.S.W.

In a case of first impression the 2nd District Appellate Court held that in a joint custody case mandatory mediation of child custody issues can be ordered by the trial court if the dispute resolution provision of the joint parenting agreement failed to require mediation.

Trial Court’s Decision:

In re Marriage of Duffy, No. 2-98-1290 ( 9-16-99), the parties were married on September 4, 1994, separated on June 10, 1997, and petitioned for dissolution of marriage on August 17, 1998. One child was born during the course of the marriage.

The joint parenting agreement incorporated language which indicated that mediation was optional to resolve future disputes over major decisions which could affect the education, health or religion of their child. The joint parenting agreement provided, in part:

"( The parties) agree that in the event that they cannot agree on the major decisions affecting the education, health, or religion of (their Child) or any other issue related to this Joint Parenting Agreement, (the parties) may enter into mediation in an attempt to resolve said dispute prior to proceeding to hearing in a court of competent jurisdiction. Use of mediation shall be encouraged, but not required of either party.*** Either party may opt out of mediation if said party does not feel said mediation shall be effective." (emphasis added), Duffy at 2.

The trial court took exception to the optional use of mediation for future disputes as to the child. The court incorporated mandatory use of mediation in the Joint Parenting Agreement to resolve future disputes and made the following statement as to the Joint Parenting Agreement:

"The one provision I don’t agree with and will not approve is the provision that says that you’re not required to engage in mediation. I feel that litigation, hiring lawyers, going to court, examination, cross examination, opening statements, closing arguments, spending the child’s future college funds on legal fees and court costs, is contrary to the child’s best interests, so I will be entering an order saying notwithstanding the agreement you are required to, except in emergency, to go to mediation.(emphasis added)" Duffy at p.2.

This order of the trial court was further clarified noting that financial matters which were related to child custody were not subject to the mandatory mediation provision. This could include child support and medical expenses.

This is a case of first impression as no Illinois case previously addressed a trial court’s authority to require mandatory mediation as part of a Joint Parenting Agreement.

Appellant’s Arguments on Appeal:

The petitioner/appellant had three arguments on appeal. First, that the trial court abused its discretion because it lacked the authority to modify the parties agreement regarding custody. Second, conceding that even though under section 502(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) the trial court is not bound by agreements governing child custody or support, the mediation provision of the Joint Parenting Agreement is not a custody provision and therefore the trial court should be bound by the parties agreement regarding mediation. Third, that the trial court exceeded its authority because section 602.1 of the IMDMA which governs joint custody agreements allows, but does not mandate, use of mediation of disputes.

Appellate Court’s Decision and Rationale:

The appellate court held that the trial court did not abuse its discretion and has the authority to modify the parties joint parenting agreement regarding custody. The appellate court agreed that Section 502(a) of the IMDMA encourages parties to enter into dissolution agreements. However, Section 502(b) of the IMDMA does allow for the mandatory mediation decision made by the trial judge:

"The terms of the agreement, except those providing for support, custody and visitation of children, are binding upon the court unless it finds that the agreement is unconscionable." (emphasis as in the original) Duffy at 4; citing 750 ILCS 5/502(b) (West 1998).

In further approval of the trial courts authority to so rule the appellate court also addressed the interest of the State as the "third party" to a dissolution action in protecting the marriage relation as well as the welfare of society. Duffy, at 4; citing In re Marriage of Ealy, 269 Ill. App. 3d 971, 975 (1995), citing Collins v. Collins, 14 Ill. 2d 178, 184 (1958). The approval of the court is required in a dissolution proceeding if the agreement affects the interest of the children. Duffy, at 4; citing Ingram, 259 Ill. App. 3d at 689, citing Blisset v. Blisset, 123 Ill. 2d 161, 167-68 (1988). The appellate court also noted that, the trial court is not bound by an agreement that does not protect the best interest of the children, as parents are not allowed to bargain away the interest of their children. Duffy, at 4; citing Blisset, 123 Ill. 2d at 170; Ealy, 269 Ill. App. 3d at 975.

"In custody proceedings the trial court must determine the best interests of the child and it’s discretion will not be disturbed on appeal absent an abuse of discretion". Duffy, at 3; citing In re Marriage of Hahin, 266 Ill. App. 3d 168, 173-174 (1994), Thomas v. Thomas, 56 Ill. App. 3d 806,807 (1978).

The appellate court found that the trial court in no way abused its discretion. The appellate court briefly dismissed the petitioners second argument that the mediation provision of the joint parenting agreement is not a custody provision and therefore the trial court should be bound by the parties agreement regarding mediation. The court disagreed stating that the resolution of disagreements as to these issues is related to custody.

"By its own terms the mediation provision addresses disagreements between the parties on "major decisions affecting the education, health, or religion" of their minor children. The right to make decisions regarding a child’s upbringing, including decisions regarding a child’s education, health care, and religious training, is clearly within the authority granted a custodial parent under the Act." Duffy at 5; citing 750 ILCS 5/608 (a). (West 1998).

The appellate court agreed with the petitioner that their third argument and this case was of first impression, as no Illinois cases addressed a trial court’s authority to require mandatory mediation as part of a joint parenting agreement. However, the appellate court held that the trial court’s order was not contrary to the language of section 602.1. In addressing the language of section 602.1(b) and Ingram the court stated; " we hold that because a trial court is authorized to enter a joint parenting order on its own motion, if the parties fail to produce one, the trial court may also, consistent with the Act, modify the parties’ proposed joint parenting agreement, if it fails to protect the best interests of the children." Duffy at 6; citing 750 ILCS 5/602.1(b); Ingram, 259 Ill. App. 3d at 689.

The appellate court also noted that a joint custody order requiring the mandatory mediation of future disputes is proper because joint custody is premised on the ability of the parents to cooperate toward the best interest of their children. Duffy at 6-7; citing 750 ILCS 5/602.1 (c) (1) (West 1998), In re Marriage of Aleshire, 273 Ill. App. 3d 81 (1995).

In further support of its holding the appellate court looked to other jurisdictions where mandatory mediation was approved by trial courts in custody and visitation disputes. The "Missouri Court of Appeals found that mediation reduces the friction inherent in most custody arrangements and is necessary for successful "shared parenting" in joint custody situations and " the trial court could order mandatory mediation as long as that order did not unconstitutionally impair the parties’ access to the judicial system."" Duffy at 7; citing In re Marriage of Goldberg, 691 S.W. 2d 312 at 316 (Mo. Ct. App. 1985).

The Wisconsin Court of Appeals similarly held that a mediation order requiring parties to attempt to resolve their disputes was consistent with the Wisconsin Statute but the trial court must first make a finding that mediation is necessary and "may not order mediation as "a standing procedure." " Duffy at 8 citing; In re Marriage of Biel, 114 Wis. 2d 191 at 196, 336 N.W. 2d 404 at 407 (Wis. Ct. App. 1983). Wisconsin then amended its statute on dissolution and now requires mediation as the first available remedy when there is a dispute over the physical custody of a child. Duffy at 8; citing In re Paternity of Stephanie R.N., 174 Wis. 2d 745, 771, 498 N.W. 2d 235, 244 (Wis. 1993); Wis. Stat. Ann. ss 767.11 (5) (West 1999).

The West Virginia Supreme Court held that even though mediation was not required by West Virginia statute, a trial court did possess the authority to order mediation of disputes. The court further examined the use of mediation nationwide and academic studies which addressed the impact of mediation. Most research indicated that mediation can reduce initial and long term conflict between the parents. Duffy at 8-9; citing Carter v. Carter, 196 W. Va. 239 at 247, 470 S.E. 2d 193 at 201 (1996).

The appellate court further supported its decision by recognition of local rule adoption of mediation in Illinois courts. "The adoption of these rules reflects a growing recognition by the Illinois courts that mediation is a useful method of resolving custody and visitation disputes without subjecting the parties to the expense and hostility inherent in the traditional adversarial system." Duffy at 9-10. The 11th, 18th and 19th Judicial Circuits require leave of the court to set a hearing without the completion of mediation. Duffy at 9-10; citing 11th Judicial Cir. Ct. R. 105(C) ( eff. March 1, 1995); 18th Judicial Cir. Ct. R. 15.18 (I) (A) (1) (eff. March 1, 1998); 19th Judicial Cir. Ct. R. 18.03 (a) ( eff. January 2, 1997). The 16th and 21st Judicial Circuits allow mediation at the discretion of the trial circuit. Duffy at 9, citing; 16th Judicial Cir. Ct. R. 15.22 (eff. October 5, 1988); 21st Judicial Cir. Ct. R. 9.1 (eff. March 17, 1997).


In affirming the trial court’s decision to include mandatory mediation as part of a joint parenting agreement the appellate court looked primarily at the best interest of children. Mediation is an alternative to litigation which does not align the parties as adversaries and is less expensive serving to preserve the parties resources. The appellate court did recognize that mediation is not appropriate for all disputes and agreed with the trial court’s exclusion of financial matters related to child custody and emergencies. Mandatory mediation would also not be appropriate where factors existed which would have likely precluded joint custody such as a history of abuse or an inability to cooperate between the parties. Mandatory mediation does not unduly restrict the parties access to the courts, if mediation proved unsuccessful the parties could litigate.

Patrick J. Ahern, J.D., L.C.S.W., is a sole practitioner in Downers Grove and St. Charles. He is also a Licensed Clinical Social Worker. His practice is concentrated in Family Mediation and Family Issues. He received his Undergraduate Degree in 1976, Masters in Social Work in 1978 and Law Degree in 1990 from Loyola University of Chicago.

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