A Publication of WTVP

Theresa Murphy is a Certified Family Law Mediator and Attorney at Law for the firm of G. Edward Murphy.

When did mandatory mediation become law in the State of Illinois?

Effective July 1, 2006, the Illinois Supreme Court adopted a new series of rules which apply to all custody proceedings involving minor children. Their purpose is to expedite cases affecting the custody of children and ensure the coordination of custody proceedings as it applies to the best interests of the child. The new Supreme Court Rules 900 through 920 apply to a variety of child custody proceedings, including divorce, parentage, guardianship and domestic violence proceedings.

Tell about your focus as a certified family law mediator.

In October 2000, my husband Ed, a family law attorney, and I completed a 40-hour mediation training course at Aurora University. Mediation was not mandatory in our Tenth Judicial Circuit at that time, but it was mandatory in DuPage and Cook counties. At that time, there were several other local attorneys who had taken or were in the process of taking mediation training courses. It was apparent that mediation was on the upswing and that mandatory mediation would be enacted statewide at some point in the future. Mediation was already being used in divorce proceedings as an alternative to traditional dissolution cases—in which each party hired his or her own attorney and argued issues in court.

What classes are required to become a certified mediator?

The primary focus of the rules is on the best interest of the child. Illinois Supreme Court Rule 905—the rule which requires each judicial circuit to establish a program to provide mediation for cases involving the custody of a child and/or visitation issues—was amended and became effective January 1, 2007.

In response to that mandate, our local Tenth Judicial Circuit of Illinois enacted a local rule which requires that mediators complete the Bradley Family Mediation Education Course and obtain a certificate of completion from Bradley University. Any mediator who successfully completed a mediation course elsewhere or requests certification based on experience may submit his/her qualifications to the Mediation Board of Bradley University to determine if he/she meets the Board’s requirements. The Mediation Board submits recommendations to the Chief Judge, who makes the final determination as to who appears on the approved list of mediators. My husband and I fell into this category, having completed a mediation course outside of Bradley.

Mediators must meet the requirements of the local rule and also agree to mediate at least one pro bono case and one sliding scale case annually as assigned by a judge. Local mediators include attorneys, retired judges, licensed social workers, professional counselors and psychologists. Mediators charge an hourly fee, with a minimum of three hours required for mandatory mediation in cases involving unresolved custody and visitation issues.

In what situation is mediation most beneficial?

Shortly after a case is filed involving a minor, a Case Management Conference (CMC) is held with the attorneys and parties involved to determine whether custody and visitation issues are in dispute. Parties are only excused from mediation if the court determines that an impediment to mediation exists, such as alcohol abuse, mental or cognitive impairment, family violence or drug dependence, or if the parties have already agreed on custody and visitation issues. Assuming no impediment exists and the parties have not agreed as to custody and visitation, a mediator is then selected from the approved list of mediators in that circuit.

The Special Supreme Court Committee on Child Custody issues made the following comments with respect to mediation: “Mediation can be useful in nearly all contested custody proceedings. Mediation can resolve a significant portion of custody disputes and often has a positive impact even when custody issues are not resolved. The process of mediation focuses the party’s attention on the needs of the child and helps the parties be realistic in their expectations regarding custody.”

The Mediation Council of Illinois states that mediation promotes decision-making by the parties; minimizes the time, costs and emotional impact of a traditional court process; promotes resolution unique to that families’ goals; is informal and confidential; facilitates communication; and puts the best interests of the children first.
I also believe that mediation is a useful means of resolving these issues. With the assistance of a mediator, parties attempt to get past personal issues with each other and focus on the best interest of the child. Parties also realize that mediation is more cost-effective than attorneys’ fees and costs associated with contested child custody cases.

During the process of mediation, I take some time to explain what mediation is: that the parties work together to reach an agreement in the best interests of their minor children. Initially, I help the parties identify the issues or areas where they disagree and then work toward an agreement. As a mediator, I do not provide legal advice, counseling or therapy; my role is to serve as an impartial, non-adversarial facilitator between the parties.

In cases where mediation is successful, the parties are able to meet each other halfway and compromise for the best interests of the children. Keeping the best interests of the children as the priority is key to effective mediation. In cases in which no agreement was reached after at least three hours of mediation, a variety of circumstances contribute to the lack of an agreement. In my experience, the most common reason is that the parties are still hurt and angry about their present situation and unable to get past those feelings to focus on the children and not themselves. They may have difficulty being civil and communicating openly. Often, mediation is one of the first times they sit down and try to communicate without being in the presence of their attorneys. They have become accustomed to the adversarial nature of attorneys representing their interests. Mediation is a very different means of conflict resolution, and the parties may not be receptive to it.

Mediation allows the parties to resolve issues unique to their family. Judge Jerelyn Maher commented during one of our continuing legal education courses that parents know their children better than anyone and are in the best position to determine their best interests. They should make every effort to be the ones who resolve the custody and visitation issues affecting their children.

After the initial divorce, can the parties return to mediation to resolve issues that may have arisen?

Mediation continues to be a useful means of conflict resolution long after the parties divorce. In Joint Parenting Agreements, the parties are required to return to mediation to work out any conflicts, such as a visitation schedule that no longer works or a school change that one parent wants and the other does not. They are required to mediate before looking to the traditional court system as a means of conflict resolution.

Can mediation work in the division of the marital estate as well as custody and visitation issues?

Parties are able to mediate all aspects of a divorce case if they so desire. We have many excellent family law mediators in central Illinois, many of whom have been mediating for several years.

What else would you like the readers to know about the benefits of mediation in regard to family law?

Mediation, like everything else in life, requires good faith and a committed effort. Mediation is here to stay and will continue to be used as a beneficial and cost-effective means of conflict resolution. The Peoria County Bar Association Subcommittee on Mediation chaired by Judge Jerelyn Maher continues to examine the process and challenges of mediation, and how to best work towards its continued success.

To learn more about family law mediation, go to the Peoria County website at iBi