The Circuit Court of Cook County Illinois serves more than 5 million residents of Chicago and surrounding suburbs. The recent revision of the county’s rule on domestic relations mediation, Cook County Circuit Court Rule 13.4(e), builds on the court’s long-standing program of mediation services required and provided by the court. Previously, the rule covered all contested initial determinations of custody, visitation, or parenting time, changes to those issues, and removal or relocation of the child. The revised rule leaves that program in place, while adding new options for the courts and families.
Probably the most significant additions are the new provisions on mediation for property and financial issues. The rule gives the court discretion to order mediation of financial issues, discovery disputes, and any other contested domestic relations issues, in addition to the custody issues previously addressed. Unlike the child-related issues where mediation is mandatory for all cases unless there is an impediment, these property and financial issues may be referred to mediation by judges on a case-by-case basis.
Another change in Rule 13.4(e) is that all domestic relations parties can consent to participate in forms of ADR other than facilitative mediation, including evaluative mediation. While the court may order parties to attend mediation sessions, parties may take the initiative to utilize other forms of ADR to resolve their issues. This change gives parties the autonomy to choose the ADR process that fits their individual case.
The third significant change is a requirement that the court maintain a list of court-certified mediators. While the court already has staff mediators, the revised rule clarifies the requirements for potential mediators of financial issues as well as child-related issues. Parties remain free to select uncertified mediators, but when parties are unable to agree on a mediator, the court will only select from the certified lists.
The revised Rule 13.4(e) also provides for several less sweeping changes:
- The rule stipulates that the court must approve settlement agreements on child-related issues in order for these written or oral agreements to be binding on the parties and the court. Settlement agreements reached in mediation on other issues, including division of property agreements, however, must be unconscionable in order for the court to be able to override them.
- The rule loosens regulations of conflict of interest. Previously, mediators could not serve in cases where they had a conflict of interest with either party or counsel. In the revised rule, mediators may continue if there has been a full disclosure of the conflict to both parties, so long as they both give written consent.
- The rule does not allow parties to engage in discovery while the issues of custody, visitation, parenting time, or removal or relocation of the child are being mediated. Discovery of financial issues cannot be limited by the revised rule, however, because those issues are better known to one party than the other.
- The rule allows attorneys and other people designated by the parties to accompany the parties and participate in the mediation, a change that further expands the parties’ autonomy.
Comments by the drafter of the new Rule 13.4(e) indicate that the changes are intended to provide the parties to domestic relations cases with more autonomy to settle their disputes outside of trial. It will be interesting to see how much the parties, lawyer and courts take advantage of these new options.