New mediation rules in domestic relations court

What you need to know if you practice in Cook County

All in the Family

Celia Gamrath

Celia Gamrath is a Cook County Circuit Court judge in the Domestic Relations Division. The views expressed in this column are her own and not those of the circuit court.

Domestic relations attorneys in Cook County Circuit Court litigate. They also mediate — more now than ever — thanks to the vision of Circuit Judge Grace Dickler, the presiding judge of the Domestic Relations Division, and Chief Judge Timothy Evans, who promulgated new mediation Rule 13.4(e) (March 17).

Here are the must-know rules about mediation in Cook County:

The goal

The goal of mediation and the establishment of a court-annexed mediation program pursuant to Cook County Circuit Court Rule 13.4(e) is to provide “an expeditious, expense-saving, fair and beneficial alternative to traditional litigation in the resolution of domestic relations controversies.”

What to mediate

Any contested issue in a domestic relations case may be mediated, but mediation is mandatory for custody-related issues. Mediation is discretionary for financial issues and discovery disputes. The court may order mediation of these issues without the consent of the parties and over the objection of a party.

Who may mediate

The parties may pick anyone to act as a mediator so long as they agree. If they do not agree to a mediator, the court must appoint a licensed Illinois lawyer who is on the court’s list of certified mediators. Qualifications of mediators are set forth in Rule 13.4(2)(x). Applications must be submitted to the presiding judge.

Immunity and fees

A person appointed to act as a mediator has judicial immunity, may set his or her own hourly rate and may collect fees for private mediation services. In appointing a private mediator, the court shall enter an order providing for compensation of the mediator and shall designate the percentage of the private mediator’s fee to be paid by each party.

Objections

A party may object to mediation or move to set aside, modify, defer or terminate the referral to mediation on grounds that there is an impediment to mediation, such as domestic violence, or there exists good cause to exempt the case from mediation — such as a desire to engage in other forms of alternative dispute resolution such as collaborative law or binding arbitration.

Procedure

The parties must attend the mediation session in person and may bring an attorney or other individual with them to participate in mediation. A mediator may require that each party provide the mediator with a statement of facts, list of issues in dispute and copies of relevant non-confidential documents such as disclosure statements, proof of income, business valuations, appraisals and school reports, in advance of a mediation session.

Confidentiality

Mediation communications are confidential and privileged, not subject to discovery or admissible in evidence.

The report

Within seven days of completing mediation, the mediator shall advise the court of the date of completion of the process, who participated in the mediation, whether settlement was reached and whether further mediation is contemplated. If a full or partial agreement is reached, the mediator shall prepare a written memorandum of understanding of the settlement terms.

Binding agreements

Mediated settlement agreements on child- related issues are not binding unless they are in writing; signed by the parties and approved by the court; or orally stated in the record and approved by the court. Settlement agreements on non-child-related issues are binding if they are in writing; signed by the parties and not unconscionable; or orally stated in the record and not unconscionable.

Discovery

Unless otherwise agreed by the parties or ordered by the court, the parties may not engage in discovery on issues of custody, visitation, parenting time or removal or relocation of the child while those issues are being mediated.

Time limit

Submitting to mediation or another form of alternative dispute resolution may establish good cause for extending the 18-month time limit for custody cases.

Completion

The mediator may end the mediation session at any time and may set times to reconvene. A party may, at any time, move to terminate mediation for good cause shown. Otherwise, mediation is considered to be complete when there is a written settlement agreement signed by each of the parties, an order or judgment of the court approving an oral settlement agreement, certification by the mediator that the mediation has been concluded without an agreement or entry of an order terminating the mediation for good cause shown.

No agreement required

Mediation may be required, in which case the parties must participate in good faith, but they are not required to reach a mediated settlement agreement.