Article written by Attorney Kevin O'Flaherty

Updated on

November 1, 2019

What Is Family Mediation?

Family mediation is one of several alternative dispute resolution options available to couples in Illinois seeking to resolve issues involving either a divorce or parenting issues. Other alternatives to litigation include collaborative divorce, cooperative divorce, and arbitration.

​In Illinois family, divorce, and child custody mediation, the parties cooperate to resolve conflicts and reach an agreement regarding issues of child custody, child support, spousal maintenance (alimony), and division of marital assets and liabilities with the assistance of a neutral third party mediator who is responsible for:

helping the parties define the issues;

facilitating communication between the parties; and

Assisting the parties in negotiating mutually agreeable solutions.

Voluntary Mediation Vs. Court Ordered Mediation

Mediation may be initiated voluntarily by the parties at any stage of their case, even before filing for divorce. It may also be ordered by the court in a domestic relations case. Even if the parties attend mediation because they were ordered to do so by the court, any resulting agreement as a result of the mediation is voluntary.

All of the circuit courts in Illinois have mandatory mediation programs for cases involving child custody or visitation issues. However, parties can be excused from mediation if the court determines that an impediment to mediation exists, such as domestic violence.

‍In cases in which mediation is mandatory, Illinois Supreme Court Rule 923 requires that an initial case-management conference will be held within 90 days of the service of the petition or complaint. If, at the time of the initial case management conference, the parties are not in agreement regarding a parenting plan, the court will schedule the case for mediation. Within 30 days after the mediation is complete, a full case-management conference will be held.

‍Local court rules vary regarding the minimum number of mediation sessions, the time period required for each sessions, how impediments to mediation and exceptions are to be handled, and provisions for confidentiality. In Cook County, the court will assign a mediator and the parties are not required to pay a fee. In other counties, the parties generally select their own mediator and are responsible for the mediator's fee. In these counties, the court may apportion the fee between the parties, select the mediator if the parties are unable to select their own, or order the mediator to perform pro bono work.

The Role Of The Mediator In Illinois Family Mediation

According to the Model Standards of Practice for Family and Divorce Mediation, the “primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of [their children] . . . and to facilitate agreement among the participants.” Unlike family law and divorce litigation, the mediation process is private. Discussions during mediation are privileged and confidential.

The Role Of Attorneys In Family Mediation

Typically, in family law mediation, each party is represented by his or her own attorney. However, if the process is initiated voluntarily prior to the filing of a case in court, some couples choose to undergo the mediation process without an attorney. Even in a voluntary mediation, it is helpful for each party to retain his or her own attorney in order to facilitate the process. Attorneys are especially important when an imbalance of power exists between the parties. Should the parties choose not to retain attorneys for the mediation process, an attorney will ultimately be necessary to file the results of the mediation in court and obtain a final order in the case.

​The Role Of Experts In Family Mediation

‍Many participants in mediation will choose to retain advisors and experts, such as financial advisors, accountants, and therapists, to ensure that both parties and the mediators are fully informed of the facts when deciding the issues involved in their case. Unlike litigation, the parties may choose to jointly retain neutral experts whose opinions and statements will be priviliged and will not be used outside of mediation should the process fail.

Communications In Family Mediation Are Privileged And Confidential

​Illinois has adopted the Uniform Mediation Act, which provides for an evidentiary and discovery privilege for all communications occurring in the mediation. However, there are certain exceptions to this requirement of confidentiality. The mediation privilege does not extend to:

‍Threats of bodily injury;

Use of mediation to commit a crime;

communications offered to prove or disprove abuse, neglect, abandonment in a proceeding in which a child or adult protective services is a party unless the case is referred by a court to mediation and the public agency participates.

‍Mediators are prohibited from reporting to the court except for communicating whether the mediation has occurred, whether a settlement was reached, and who attended the mediation.

What Are The Benefits Of Mediation?

Deciding issues through mediation has several advantages when compared to litigation:

The parties to a mediation tend to view the mediation process as more responsive to their needs than the litigation process. The parties to a mediation have more direct control over the process.

The family mediation process creates a custom solution for the family, as opposed to a "win" or "lose" outcome.

Agreements reached through mediation have a higher rate of compliance by the parties when compared to court orders decided by litigation. They are also less likely to be re-litigated by the parties at a later date.

Mediation agreements tend to resolve issues surrounding divorce and parenting earlier in the process than litigation, which results in less stress on the family.

The family mediation process is private, while litigation makes many personal family matters a matter of public record. The parties are able to speak freely, raise concerns, consider alternatives, and even apologize without those statements being used against them in court.

The family mediation process tends to me more cost-effective than litigation, because the parties can resolve many of their issues directly without paying attorneys to litigate the issues in court.

When Is Family Mediation Inappropriate?

Family mediation, divorce mediation, and child custody mediation tends to be inappropriate when there is an imbalance of power between the parties, the threat of violence, concerns that one of the parties may not be mentally or emotionally competent, or when one of the parties is making unwelcome attempts to reconcile.

What Should I Discuss With The Mediator Prior To Retaining Him Or Her?

Selecting the right mediator is crucial. The parties should interview the mediator prior to retaining him or her and ask several questions:

Find out about the mediator's training and experience;

Ask about the mediator's approach to mediation and the process that the mediator uses;

Find out if the mediator meets with children as part of the process;

Compare the mediator's fees with those of other mediators; and

Ensure that the mediator does not have a conflict of interests.

Mediators will speak to each party individually before taking the case to ensure that the case is a good fit for mediation and for the particular mediation. These discussions give the parties an opportunity to explain their perspectives on the issues involved in their case and to establish a comfort level with the mediator.

Preparing For Mediation With Your Attorney

If you are retaining an attorney to represent you in the mediation, you should meet with your attorney before the process begins. Your attorney will explain what to expect from the mediation process, assist you in identifying your objectives, discuss the potential options for resolving the issues in your case, and assist you in preparing a strategy for dealing with contentious issues.

The Illinois Family Mediation Process Explained

Every family mediator will have a slightly different approach to the mediation process. However, a family mediation will typically proceed as follows:

Initial Joint Meeting with the Mediator: After the mediator has spoken to both parents and attorneys individually and the parties have individually met with their attorneys, the mediator will convene a meeting of both parties and their attorneys in order to explain the mediator's role in the process, ensure that both parties understand that the process is voluntary and confidential, provide an overview of the mediation process, and discuss the parties' objectives. At this point the parties will have an opportunity to make initial comments to the mediator regarding issues that are important to them. The mediator and the parties will participate in a joint discussion in order to identify issues, determine whether to hire additional experts, and identify potential solutions. The Mediator's Caucus with each Party: After the initial joint meeting with the mediator, the mediator will meet individually with each party to clarify each party's position, issues, concerns and proposed solutions. Some mediators will tell you at the outset that these conversations will not be shared with the other party. However, this is not always the case. Additional Discussions: After the parties have each met individually with the mediator, a series of joint discussions and individual caucuses will take place until either all of the issues involved in the mediation have been resolved or the parties and the mediator determine that an agreement cannot be reached through mediation. Memorandum of Understanding: If the mediation process is successful, the mediator will provide a Memorandum of Understanding laying out the issues on which the parties have agreed, and any outstanding matters on which the parties were not able to reach an agreement. The mediators will file a mediation report with the court that is limited to stating that a mediation occurred, whether it was successful, and naming the parties in attendance. The parties' attorneys will then prepare a final settlement agreement to be filed with the court based on the terms of the mediator's Memorandum of Understanding.

What If Mediation Is Unsuccessful In Reaching An Agreement?

Even if you are unable to successfully reach an agreement through mediation, the process can be beneficial. The mediation process clarifies the outstanding issues for the parties and gives the parties an understanding of their potential options. It is common for agreements to be reached through the parties' attorneys on outstanding issues shortly after mediation.