Family law disputes are resolved through litigation or through alternative dispute resolution such as mediation. In litigation, issues are brought before a Judge who makes decisions after considering evidence that is presented by the parties at a hearing or trial. Apart from being costly and time-consuming, litigation is also unpredictable because Judges have wide discretion when deciding family law matters.
Alternatively, mediation is a process by which parties can resolve financial issues (property division, maintenance, child support) and child-related issues (decision-making and parenting time) through the assistance of a certified mediator. The mediator serves as a disinterested third party whose goal is to facilitate a discussion between the parties as they navigate the resolution of issues that impact finances, livelihoods, and the lives of their children.
The goal of mediation is to encourage parties to resolve issues without court intervention, mediation is a form of non-binding dispute resolution. Parties participating in mediation have an incentive to reach an agreement because proceeding with litigation can result in rulings that are tailored to each party’s interests, rather than their needs.
Parties who seek to minimize the collateral effects of litigation, may benefit from mediation, as mediation encourages parties to resolve issues in a non-adversarial manner. Mediation tends to reduce costs because it minimizes how much time the parties will pay individual attorneys to negotiate and/or litigate issues on their behalf. The success of mediation rests on the parties’ willingness and ability to compromise.
Although mediation is non-binding and voluntary with respect to financial related issues in divorce or parentage proceedings, mediation may be mandatory when parties cannot reach an accord on a parenting plan, which details the responsibilities and parenting time each parent will have with the children. If the parenting plans are not identical, or agreed upon, Illinois Law provides “the court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist.” 750 ILCS 5/602.10(c)
Illinois courts have established local rules that require mediation for child-related issues. For example, the circuit court in Lake County requires parties to participate in mediation when there is a dispute over child-related issues. “Mediation shall be ordered by the Court, except upon a showing of the existence of an impediment to mediation or for other good cause shown, for all disputes involving child allocation of parental responsibility, allocation of parenting time, removal, or other non-economic issues relating to the child or children, either pre-judgment or post-judgment. Mediation shall be limited to the issues specified by the Court in the referral Order. 19th Judicial Circuit Court Rule 4-3.19(B)(1)
Cook County Circuit Court requires both parties are required to attend mediation prior to filing a petition with the Court, unless the issue is an emergency, and immediate court intervention is required. Cook County Circuit Court local rules provide, “For the following categories of contested issues, mediation is mandatory unless an impediment to mediation exists: (1) initial determinations of allocation of parental responsibilities; (2) modification of allocation of parental responsibilities; (3) relocation of the child; 4) non-parent visitation and third-party allocation of parental responsibilities.” Cook County Circuit Court Rule 13.4(e)(ii)(b)
The circuit court in DuPage County prohibits a hearing on contested child-related issues until mediation has concluded, unless good cause exists for why mediation would be futile. “Without leave of Court, the parties may not proceed to a judicial hearing on contested issues including temporary relief arising in that case until the mediation process has been concluded and the mediation report has been submitted to the Court. Mediation may be waived if the parties have participated in mediation pursuant to a joint parenting agreement or by the Court on good cause shown.” 18th Judicial Circuit Court Rule 15.15(a)(1).
Mediation is not suitable in cases whether domestic violence is a factor, where one of the parties is impaired, or where one or both of the parties are incapable of cooperation and compromise. For example, Cook County Circuit Court provides that mediation is not advisable when there has been “past or present family violence or abuse, mental or cognitive impairment, alcohol abuse, or chemical dependency.” Cook County Circuit Court Rule 13.4(e)(i)(b)(3).
The circuit court in DuPage County has defined an impediment to mediation “to include, but is not limited to, domestic violence, mental illness, cognitive impairment, drug use, alcohol use, prescription medication use, physical impairment, fraud, duress or undue influence.” 18th Judicial Circuit Court Rule 15.15(a)(3). In those cases, a courtroom is a more productive setting for resolving contested family law disputes.
Whether you are participating in voluntary or court-ordered meditation, or you are involved in litigation, our Chicago divorce and family law attorneys are here to guide you through the process. Contact us today to find out which form of dispute resolution is best suitable for your family law case.
