If those litigants are able to make compromises and enter into meaningful negotiation, then their case may very well be resolved in a relatively short amount of time. On the other hand, if the parties are unwilling or unable to deviate from their respective positions, the likelihood that the case becomes a long, drawn-out process is greatly increased.
A child custody and visitation case is no different. When parents are involved in contested custody and visitation litigation (now known as allocation of parenting time and parental responsibilities in Illinois), the court will consider a number of important statutory factors that will help it rule in one party’s favor or another. Obviously, when parents are unable to reach any sort of agreement as to custody or parenting issues, the court is fully empowered to decide those issues on the parents’ behalf. Conversely, if the parents are inclined to reach agreements on at least some of the issues, that will have the effect of at least narrowing down the subject matter that the court will be forced to rule upon later, thus streamlining the litigation process and ultimately empowering the parties to make decisions on their own behalf with less judicial interference.
Fortunately, courts in Illinois have attempted to encourage and facilitate negotiation and settlement in child custody and visitation cases with the use of mandatory mediation. All of the circuit courts in Illinois utilize mandatory mediation for child custody or visitation cases. For those cases requiring mediation, Illinois Supreme Court Rule 923 requires that an initial case-management conference 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 mediation. Within 30 days after the mediation has been completed, a full case-management conference must be held.
Mandatory mediation is also an important feature of child custody and visitation cases in the Domestic Relations Division of the Circuit Court of Cook County. Pursuant to Cook County Circuit Court Rule 13.4(e)(4) “Mediation” means a non-binding confidential process by which a neutral third party, selected by the parties to the case or selected by or with the assistance of the court, assists the parties in reaching a mutually acceptable agreement. The role of the mediator is to assist in identifying the issues, reducing misunderstandings, exploring and clarifying the parties’ respective interests and priorities, and identifying and exploring possible solutions that will satisfy the interests of all parties and thereby facilitate resolution of some or all of the issues in dispute.”
The Circuit Court has adopted the principles contained in the Uniform Mediation Act in pursuing the following objectives for mediation:
- promote candor of parties through confidentiality of the mediation process, subject only to the need for disclosure to accommodate specific and compelling societal interests;
- encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process, active party involvement, and informed self-determination by the parties; and
- advance the policy that the decision-making authority in the mediation process rests with the parties.
Although mediation is mandatory in most child custody and visitation cases, there are a few noteworthy exceptions. Illinois courts have recognized that child custody mediation is generally inappropriate when there is an imbalance of power between the litigants, when there is an explicit or implicit threat of violence between the litigants, when there is a concern that one of the litigants may not be mentally or emotionally competent, or when one of the litigants has made attempts to reconcile that have not been reciprocated.
The mediation process can be helpful for a number of reasons. First, there is the expectation that the parties will be more inclined to engage with one another in a less adversarial manner compared to a contested hearing in a courtroom with the parties’ attorneys battling it out in front of the judge. Second, the mediator is neutral and trained specifically to guide the parties through the negotiation process, creating an atmosphere where the parties can hopefully talk it out and reach common ground on certain issues. 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 litigation, the mediation process is private. Any discussions during the mediation session are privileged and confidential.
While a judge may be well versed in the substantive law, he or she may not have the time, ability or temperament to guide the parties to a mutually acceptable agreement within a courtroom setting. With mediation, the parties in essence have an alternative forum to hash out their disputes free of the procedural rules and formalities that characterize the contested litigation process.
That said, while mandatory mediation is certainly well intentioned and effective in many contexts, it has been my experience as a divorce and family law practitioner that mediation is only successful if the litigants are willing and able to compromise and negotiate with one another. In those situations, mediation can be an excellent tool to facilitate settlement. However, if the litigants have essentially dug in their heels and are unwilling to deviate from their respective positions, then the value of the mediation process may be limited despite the mediator’s best efforts. In those instances, the litigants will likely have no other choice but to continue formal litigation resulting in the judge ultimately having to make the decisions for them.
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