Summary of Mediation Process
INTRODUCTION: Pursuant to Illinois Supreme Court Rule 905, the Second Judicial Circuit Family Mediation Program (Rule 21) was enacted in 2007. In conjunction with Circuit Rule 19 (Pre-Trial Conferences in Family Cases), the Program includes both a private and judicial mediation component with applicable forms available online and at each Circuit Clerk’s offices.
1. SCOPE: All new Dissolution of Marriage cases and all other cases with contested qualifying issues (custody/visitation, access to and/or removal of children) in temporary, initial and post-judgment proceedings shall be set as follows: Temporary Relief matters with qualifying issues shall be set for an Expedited Case Management Conference within 14 days, unless the pleading recites sworn facts showing a present or threatened serious endangerment to the physical or emotional health of the child (ren) in which case the temporary relief matter shall be set for hearing in accordance with existing rules.
All other cases having qualifying issues shall be set for an Initial Case Management Conference within 90-110 days.
All of the foregoing case management conference settings shall be inscribed on any summons, Notice of Expedited Case Management Conference or Notice of Initial Case Management Conference issued by the clerk.
2. CASE MANAGEMENT CONFERENCES: In all cases without disputed qualifying issues, the setting shall be conducted as a scheduling conference.
At least 7 days before any case management conference in cases having unresolved qualifying issues, the parties shall file financial affidavits, pre-mediation questionnaires and, except prior to an Expedited Case Management Conference, certificates verifying completion of an approved parenting education program, unless later completion is approved by the trial court.
At the case management conference, the trial court shall verify that the mandatory prerequisites have been met or continue the matter to a short date to ensure compliance. If all prerequisites have been met and no impediment or disqualifying circumstance which could impede mediation is found, the trial court shall enter a Mediation Order, or alternatively if a temporary relief matter, the case may set for hearing.
3. REFERRAL TO MEDIATION: A Mediation Order may be entered at any time if all prerequisites have been met.
If at any case management conference settlement on a qualifying issue appears imminent, the Mediation Order may defer the appointment of a mediator and provide the conference be continued to a short date. Where referral is made, the court shall determine whether the cause is an indigent case and, if not, appoint an agreed Private Mediator from the circuit approved list, or absent agreement, the court shall select the mediator. If the cause is found to be an indigent case, referral may only be made to private mediation if the parties jointly agree to pay for it or if it is determined that the selected mediator will conduct the mediation on a pro bono or reduced fee basis. In all other indigent cases, the trial judge shall contact the Chief Judge’s office and request the assignment of a Judicial Mediator.
Upon the entry of a Mediation Order, the clerk shall mail or fax a copy of the order to the appointed mediator together with copies of the case record sheets, disputed pleadings, financial affidavits and pre-mediation questionnaires. Every Mediation Order shall recite a 45 day Continued Case Management Conference at which setting the parties and the mediator shall report the status of the ordered mediation.
After receipt of the Mediation Order and forwarded case documents, the mediator shall determine whether any conflict or impediment to mediation exists which would require disqualification or recusal and, if found, immediately notify the trial court, parties and their counsel. If no conflict or impediment exists, the mediator shall promptly schedule the mediation such that, whenever possible, it will occur before the 45 day Continued Case Management Conference date.
4. POST-MEDIATION PROCEDURE: Promptly upon the conclusion of mediation where no agreement has been reached, including a judicial mediation case wherein an agreement was not found to be in the best interest of any child (ren), the mediator shall file with the clerk a report that the matter concluded unsuccessfully.
In all other cases involving a Private Mediator wherein agreement or partial agreement was reached, the mediator shall provide a specific written account of the agreement to the parties and their counsel, but only report the particular qualifying issues on which agreement was reached to the trial court.
In all other cases involving a Judicial Mediator wherein agreement or partial agreement was reached and found to be in the best interest of any child (ren) as to any qualifying issue and not unconscionable as to other issues, a Provisional Order shall be entered by the Judicial Mediator. Such order shall not be effective until co-entry by the trial court at the Continued Case Management Conference, but shall be irrevocable by the parties pending action by the trial judge unless vacated by the Judicial Mediator upon appropriate motion by a mediating party prior to presentment to the court.
At the post-mediation Continued Case Management Conference, mediation agreements or results shall be presented to the trial judge. The court shall examine the parties and any agreement, determine whether its provisions are contrary to the best interest of the child (ren) or is otherwise unconscionable, and unless rejected, enter an appropriate judgment or order approving the agreement, including the co-entry of a Provisional Order.
In cases where no agreement has been reached, the trial judge shall conclude the conference and set the matter for further proceedings in accordance with the rules.