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Posted on September 7, 2016

When Is Mediation Required In An Illinois Divorce Case?

Mediation is a great idea for any divorce.  Mediation can help eliminate some or all disagreements and thereby eliminate the need for most of a divorce lawyers work.  But often the parties to a divorce are in such disagreement that mediation is impossible.  When is mediation required in an Illinois divorce?

Mediation In Illinois If The Divorcing Parties Have Children

Mediation is only mandatory in an Illinois divorce if the parties have children together.

In Illinois, when the parties have children, each party must file with the court a proposed parenting plan.

“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)

A parenting plan is a detailed document outlining what responsibilities and time each parent will have with the children.

If the parenting plans are not identical or agreed upon, “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.  Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.”  750 ILCS 5/602.10(c)

Each local courts has local rules governing mediation. “Apart from statutory authority, some judicial circuits provide for mediation by local rule, apparently pursuant to their inherent authority to regulate their dockets and calendars. Such rules typically give trial courts broad discretion to order mediation, but only after an initial determination that it would be in the parties’ best interests or that mediation would be appropriate in solving a particular problem.” In re Marriage of Aleshire, 652 NE 2d 383 – Ill: Appellate Court, 3rd Dist. 1995

The Cook County Court Rules further require mediation.  “Parties and their representatives are required to attend mediation sessions, but are not compelled to reach an agreement.” Cook County Court Rule 13.4(e)(i)(a)

“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 Court Rule 13.4(e)(ii)(b)

Mandatory mediation is not required if there has been “past or present family violence or abuse, mental or cognitive impairment, alcohol abuse, or chemical dependency.  Family violence or abuse includes harassment, intimidation, and interference with personal liberty.” Cook County Court Rule 13.4(e)(i)(b)(3)

There are kinds of mediation that are not mandatory and can be requested by a party, an attorney, a guardian ad litem or by the court on its own motion.  The court may order mediation for debt, money, and other property-related disputes that arise in an Illinois divorce.

Beyond mediation, an Illinois divorce court can order a lot of things that resemble mediation in all but name.

Family counseling is, effectively, mediation with a therapist. An Illinois divorce court can “[r]equire or recommend the respondent to undergo counseling for a specified duration with a social worker, psychologist, clinical psychologist, psychiatrist, family service agency, alcohol or substance abuse program, mental health center guidance counselor, agency providing services to elders, program designed for domestic violence abusers or any other guidance service the court deems appropriate.” 750 ILCS 60/214(a)(4)

Courts have the power (which they never use) to try to get the couple to consider reconciling. “If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference.” 750 ILCS 5/404(a)

In Cook County, Illinois, courts can order something akin to emergency mediation called “emergency intervention.”

“Where a judge has reason to believe that a child may be in imminent danger, the court may order the parties and children to an immediate interview with the Cook County Family Mediation Services mediator who acts as the court’s intervener(s) in the matter. The emergency intervention interview shall not be confidential or privileged and any statements made during the interview may be communicated to the court and subject to discovery. Following the interview, the intervener(s) shall report to the court in the presence of the parties with regard to the recommendations of the interviewer.” Cook County Court Rule 13(d)(iv)(d)

The cost of the mediation “shall be borne by the parties and may be assessed by the court as it deems equitable without prejudice and are subject to reallocation at the conclusion of the case.” 750 ILCS 5/501(e).  Basically, the court will determine who will pay for mediation now based on what seems fair but the responsibility to pay may changed at the end of the case when the court has a complete picture of the parties’ finances.

In my experience, mediation can often be a blessing in disguise for about half of all cases.  Mediation can provide a sounding board for an aggrieved party that lets them finally come to a conclusion regarding the painful emotional realities of divorce.  Mediation, when done successfully, is far cheaper than formal divorce litigation.

Unfortunately, it is common for mediation to be unsuccessful with no resolution of some or all issues.  In these cases of unsuccessful mediation, there is no further option beyond formal divorce litigation.  Your lawyer should be preparing for litigation while mediation is ongoing (which often takes months) in case the mediation fails.

Contact my Chicago, Illinois law firm to learn more about mediation and the steps after mediation.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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