13.4 Pre-Trial Phase


(a) Pre-Judgment and Post-Judgment Motions, Petitions and Applications, Hearings

(i)  In General
a. All motions, petitions and applications shall be made in writing. A notice of motion is not a motion.
b. All petitions and motions submitted to the court in Domestic Relations cases shall be titled with an accurate description of the primary relief sought in the petition or motion.  Each responsive pleading shall specifically identify the petition or motion to which it responds. 
c. Petitions shall be verified. All petitions and motions shall state with specificity the statute or authority relied upon for the relief sought.   If a petition or motion fails to state with specificity the statute or authority relied upon for the relief sought, it may be stricken, sua sponte, by the court.
d. If an order submitted to the court is agreed, the word “agreed” shall precede the word “order” in the title.
e. Petitions for Rule to Show Cause or Adjudications of Contempt shall state both the legal and the factual bases of the contempt finding sought.
f. All motions, petitions and applications shall be filed with the Clerk of the Circuit Court. 
g. Notice shall be in accordance with the applicable Illinois Supreme Court Rules, Cook County Circuit Court Rules and statutes.
h. At the time of the appointment of an evaluation pursuant to 750 ILCS 5/604, the court may issue a protective order prohibiting the parties or their attorneys from disseminating the contents of said report for purposes other than the litigation or to the minor children or to anyone who is not a party to the litigation. 
i. Evaluators appointed pursuant to Section 604(b) of the Illinois Marriage and Dissolution of Marriage Act shall be required to send a detailed monthly bill to the parties or their respective counsel after their appointments unless they have previously entered into a written agreement for a “flat fee.”   
(ii)  Emergency Motions
a. Emergency motions shall be heard at a time designated by the judge to whom the case is assigned. 
b. Facts identifying the nature of the sudden or unforeseen circumstances which give rise to the emergency and the reason why the matter should take precedence shall be stated with particularity in an affidavit or verification in support of the emergency motion. 
(iii) Default Matters - When a party fails to file an appearance and/or an answer, cases transferred to another calendar for the limited purpose of a default prove-up with a court reporter, shall have the order of default entered before being transferred.
(iv)  Ex Parte Matters
a. An ex parte matter is one where a party appears in court without giving notice for good cause shown.  Such matters shall be heard at a time 
designated by the judge to whom the case is assigned.
b. When an ex parte order is sought, the petition shall state the reason why notice should not be given and why the matter should be heard ex parte.
c. If the court does not deem the matter appropriate to be heard ex parte, the movant may set the matter on the motion call, with proper notice. 
d. No ex parte order for custody shall be granted without notice unless it clearly appears from specific facts shown in a verified petition that immediate irreparable harm will be suffered by the child if notice is served before a hearing is held. All ex parte orders for custody shall set a status or hearing date on or before the 10th day after said order is entered and shall take precedence over all other matters. A copy of the ex partecustody order, with a copy of the underlying petition, shall be immediately served upon the other party. On two (2) days notice to the party who obtained the ex parte custody order, the adverse party may appear and move for a re-hearing or modification on the ex parte order.

(b) Appointment of Guardian ad Litem, Attorney for the Child and Child Representative

(i)  The appointment of a guardian ad litem, attorney for the child, and child representative shall be in accordance with the Illinois Marriage and Dissolution of Marriage Act and Illinois Supreme Court Rules 906 and 907.

(ii)  The order of appointment shall provide that the appointment will terminate thirty (30) days after the entry of the final custody judgment unless extended by the court.

(c) Children in Court - If the court finds that it is not in the best interest of a minor child of litigants to be inside the courtroom, the court may exclude the minor child from the courtroom.

(d) Assignment to Special Services

(i) Supportive Services - The court may order an investigation and a written report from Supportive Services of Cook County.  Said investigation shall be in accordance with 750 ILCS 5/605.

(ii)  Forensic Clinical Services - The court may order the parties to be evaluated by Forensic Clinical Services of Cook County in accordance with 750 ILCS 5/604(b).  Forensic Clinical Services shall issue a written report with recommendations.

(iii) Family Mediation Services - Family Mediation Services shall provide the following assistance to litigants and their families: 

a. Mediation - In accordance with the provisions set forth in this set of rules, the Cook County Family Mediation Services shall provide mediation services to parties litigating a dispute involving children in the Domestic Relations Division.

b. Reconciliation - Where the judge has reason to believe that there is a prospect of reconciliation, the court, at the request of either party, or the attorney for the child, guardian ad litem or child representative, or on its own motion, may order the parties to attend a reconciliation conference. The content, use and administration of a reconciliation shall be privileged and confidential and shall not be disclosed to any party outside of the mediation or admissible at the time of trial.

c. Conciliation - At the request of either party or the attorney for the child, guardian ad litem or the child representative, or on its own motion, the court may order the parties to attend a conciliation conference for the purpose of assisting the parties to improve their communication and parenting skills and to refer the parties to any community services which may be appropriate.  The content, use and administration of said conference shall be privileged and confidential and shall not be disclosed to any party outside of the conciliation conference or admissible at the time of trial.

d. 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.

(e) Provisions Governing Mediation

(i) Domestic Relations Division Mediation and Other ADR Procedures to Facilitate Settlement.

(a) Description and purpose of program.
In an effort to provide an expeditious, expense-saving, fair and beneficial alternative to traditional litigation in the resolution of domestic relations controversies, these rules establish a program of court-annexed mediation which shall operate in cases pending in the Domestic Relations Division of the Circuit Court of Cook County.  Parties and their representatives are required to attend mediation sessions, but are not compelled to reach an agreement.  The program includes mediators employed by Cook County and private mediators. In addition, the parties may agree to utilize other forms of alternative dispute resolution (“ADR”).

Committee Comment:  Rule (i)(a) derives from Cook Co. Cir. Ct. Rs. 20.01 (Law Div.) (eff. April 5, 2004) and 21.01 (Chancery Div.) (eff. August 1, 2013).

(b) Definitions. The definition of “Domestic Relations case” is contained in Cook Co. Cir. Ct. R. 13.1.

(1) "Alternative dispute resolution" means procedures for settling disputes by processes other than litigation. Committee Comment:  The definition of "alternative dispute resolution" (ADR) is consistent with the definition in Black’s Law Dictionary (9th ed. 2009).

(2) “Evaluative Mediation” means a separate procedure that occurs during a mediation in which the mediator provides to the parties at their request a recommendation for settlement of any issues that are unresolved.  See Cook Co. Cir. Ct. R.13.4(e)(v)(g).

Committee Comment:  This definition is derived from Michigan Court Rules 3.216(A)(2)and 3.216(I) (eff. September 5, 2013).

(3) “Impediment to mediation” means a circumstance which may render mediation inappropriate or unreasonably interfere with the mediation process.  Impediments may include, without limitation, 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.

Committee Comment:  This definition is derived from the previous Cook Co. Cir. Ct. R. 13.4(e)(vii)(eff. October 16, 2012),Committee Comments to Ill. S. Ct. R. 905 (eff. September 1, 2013), and the terminology used in the Ill. Domestic Violence Act, 750 ILCS 60/101, et seq.

(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.

Committee Comment:  This definition is derived from Cook Co. Cir. Ct. R. 20.01 (Law Div.) (eff. April 5, 2004), Cook Co. Cir. Ct. R. 21.01 (Chancery Div.) (eff. August 1, 2013) and Michigan Court Rule 3.216(A)(2)(eff. September 5, 2013).

(5) “Mediation communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

Committee Comment:  This definition is the same as used in the Uniform Mediation Act, 710 ILCS 35/2(2) .

(6) “Parenting Coordination” means a process to help parties resolve disputes through appointment of a parenting coordinator as described in Cook Co. Cir. Ct. R. 13.10. 

(7) “Party/Parties” as utilized throughout this rule shall not include in its meaning the Illinois Department of Healthcare and Family Services (HFS).  Although HFS is statutorily required to be a party to all domestic relations cases brought pursuant to Title IV-D of the Social Security Act, 42 U.S.C. §§ 651, et seq., it shall not be considered a party subject to the provisions of this rule.

(8) “Private mediator” means a person or organization providing mediation services other than Family Mediation Services of the Circuit Court of Cook County which offers mediation at no charge.

(c) Ordering of mediation and parenting coordination; utilization of other forms of ADR.  The court may order mediation and parenting coordination without consent of the parties.  The parties, on their own initiative, may utilize other forms of ADR.  

Committee Comment:  These rules seek to promote broad use of ADR procedures. As noted in Cook Co. Cir. Ct. R. 13.4(e) (ii)(b) and (e)(ii)(c), the court can order mediation, even if a party objects.  Under Cook Co. Cir. Ct. R. 13.4(e) (i)(c), parenting coordination also can be ordered over objection of a party or the parties. Other forms of ADR may be utilized if the parties so agree.  

(ii) Actions Eligible for Mediation; Impediments to Mediation; Objection to Mediation.

(a) Submission of issues to mediation.  On written stipulation of the parties, on written motion of a party, or on the court’s initiative, the court may submit to mediation by written order any contested issue in a domestic relations case, provided that if an impediment to mediation exists it shall be considered by the court prior to ordering mediation.  If an order of protection is in effect, mediation cannot be ordered unless the court determines that a referral to mediation is appropriate.

The court may submit a contested issue to mediation at any stage of the proceedings so long as a trial on that issue has not commenced.  Once trial on a contested issue has commenced, the court may recommend that the contested issue be submitted to mediation, but the issue shall not be submitted to mediation unless both parties agree to suspend the trial. 

Committee Comment:  In keeping with the goals of autonomy and encouraging parties to resolve their own dispute, parties may stipulate to mediation, including by a mediator of the parties’ own selection. If, however, an impediment to mediation exists, the court shall consider that circumstance before ordering mediation.  See Cook Co. Cir. Ct. R. 13.4(e)(i)(b)(6) for definition of “impediment to mediation”. The existence of an order of protection against a party to the case does not automatically mean that an impediment to mediation exists, but that circumstance does require the court to determine if mediation is appropriate.  Cook Co. Cir. Ct. R. 13.4(e)(iii)(b) provides that cases referred to Family Mediation Services (“FMS”) will be subject to the FMS’s procedures.  The FMS has multiple procedures to protect against family violence and abuse.  In cases in which an order of protection is in effect and the parties are referred to the FMS, a determination by the court that mediation is appropriate is not necessary.  Sources for this rule include Michigan Court Rule 3.216(C)(1) (eff. September 5, 2013) and the previous Cook Co. Cir. Ct. R. 13.4(e)(vii) (eff. October 16, 2012) (regarding screening for impediments to mediation).

(b) Mandatory mediation.  For the following categories of contested issues, mediation is mandatory unless an impediment to mediation exists:  (1) initial determinations of custody, visitation, or parenting time; (2) modification of custody, visitation, or parenting time; (3) removal or relocation of the child.  The mediation process for these categories of contested issues shall commence pursuant to Ill. S. Ct. R. 923(a)(3) as soon as practicable after any such contested issue arises, subject to Cook Co. Cir. Ct. R. 13.4(f) regarding the Parenting Education Program which requires completion of Focus on Children prior to commencing mediation unless excused by the court for good cause shown.

Committee Comment:  This subsection derives from the previous Cook Co. Cir. Ct R. 13.4(e)(i), (ii) (eff. October 16, 2012) and Ill. S. Ct. Rs. 923(a)(3) (eff. July 1, 2006)  and 905(b) (eff. September 1, 2013). This subsection continues the practice of providing mandatory mediation of custody-related issues unless an impediment to mediation exists.  It applies to initial determinations as well as modification proceedings and also encompasses disputes regarding removal or relocation of the child. For cases referred to Family Mediation Services, completion of Focus on Children is not required before commencing mediation under the FMS procedures.  See Cook Co. Cir. Ct. R. 13.4(e)(iii)(b). 

(c) Discretionary mediation.  An order of mediation is discretionary for financial issues, discovery disputes, and any contested domestic relations issues other than those listed in Cook Co. Cir. Ct. R. 13.4(e) (ii)(b).  Mediation of these issues may be ordered without the consent of the parties and over the objection of a party.  The financial resources of the parties shall be considered before ordering mediation of these issues.

Committee Comment:  One of the expansions of the previous version of Cook Co. Cir. Ct. R. 13.4(e) (eff. October 16, 2012) is to allow courts to order mediation of issues other than custody-related issues.  Such issues may include financial issues and discovery issues.  It is anticipated that the court will consider the extent to which the parties have participated in other ADR processes before ordering mediation of such issues.  See Cook Co. Cir. Ct. R. 13.4(e) (iii)(c) regarding compensation of mediators.

(d) Objection to mediation.  A party may object to the referral to mediation or move at any time to set aside, modify, defer or terminate the referral to mediation.  For cases subject to mandatory mediation under Cook Co. Cir. Ct. R. 13.4(e) (ii)(b), a party may object to the referral to mediation but only on the basis that an impediment to mediation exists.  For cases subject to discretionary mediation under Cook Co. Cir. Ct. R. 13.4(e) (ii)(c), a party may object to the referral to mediation on the basis that an impediment to mediation exists or there exists good cause to exempt the case from mediation.

Committee Comment:  Ill. S. Ct. R. 905(eff. September 1, 2013) mandates mediation for cases related to custody and visitation and provides for an “excuse from referral to mediation if the court determines an impediment to mediation exists.”  The rule does not provide for other excuses from referral to mediation such as good cause based upon the parties’ wish to utilize a type of dispute resolution other than mediation.  Ill. S. Ct. R. 905 does not deal with excuses from referral to mediation for issues other than custody and visitation.  The proposed rule, which is not in conflict with Illinois Supreme Court Rules, applies a more flexible standard for excuse from referral to mediation for cases subject to discretionary mediation (i.e., allowing exemption from referral for “impediment to mediation” as well as “good cause”).  The proposed rule also derives from Cook Co. Cir. Ct. Rs. 20.02(b)(Law Div.) (eff. April 5, 2004) and 21.02(b)(Chancery Div.) (eff. August 1, 2013) and Michigan Court Rule 3.216(D) (eff. September 5, 2013).  The proposed rule allows a party to object to mediation “at any time” – including before mediation is ordered; after mediation is ordered, but before mediation is commenced; and after mediation has commenced.

(iii) Appointment of a Mediator; Private Mediator’s Compensation; Scheduling of Mediation.

(a) Appointment by stipulation. The parties may stipulate to the selection of a mediator.  A private mediator selected by agreement of the parties need not meet the qualifications set forth in Cook Co. Cir. Ct. R. 13.4(e)(x).  The court must appoint a private mediator stipulated to by the parties, whether or not the mediator is on the court’s list of certified mediators,  provided the mediator is willing to serve within a period that would not interfere with the court’s scheduling of the case for trial.

Committee Comment:  In keeping with promoting autonomy of the parties, the parties may stipulate to their own mediator, subject only to the requirement that “the mediator is willing to serve within a period that would not interfere with the court’s scheduling of the case for trial.”

(b) Appointment without stipulation.  If the parties have not stipulated to a mediator, the court shall assign the parties to a mediation service or a private mediator from the court’s list of certified mediators.  The court’s list shall contain the hourly rate of each mediator.  If the contested issues involve custody, visitation, parenting time, or removal or relocation of the child, and the parties have not stipulated to a private mediator, the parties shall be referred to Family Mediation Services and be subject to their procedures.  If the contested issues are other than custody, visitation, parenting time, or removal or relocation of the child, and the parties have not stipulated to a private mediator, the parties will be referred to a private mediator on the court’s list of certified mediators.  See Cook Co. Cir. Ct. R. 13.4(e)(x)(b).

(c) Compensation.  The court shall enter an order as appropriate for compensation of a private mediator, including a retainer.  The order shall designate the percentage of the private mediator’s fee to be paid by each party and whether the mediation services are to be provided at no charge or at a reduced charge.  Private mediators may set their own rates except in cases in which the mediator is serving at no charge or at a reduced charge under Cook Co. Cir. Ct. R. 13.4(e)(x)(b)(5).  The mediator may require the parties to sign a contract for the mediation services, provided the contract does not violate these rules or state statute.  The procedure for submission of invoices and payment shall be as provided by the statutory provision applicable to appointments of attorneys for children.  The mediator’s fee is deemed a cost of the action, and the court may enforce the obligation upon motion of a party or the mediator. 

Committee Comment:  It is anticipated that most referrals to a certified mediator (i.e., a mediator on the court-approved list) will include compensation for the mediator.  Cook Co. Cir. Ct. R. 13.4(e)(x)(b)(5), however, does provide:  “Acceptance of a listing as a certified mediator may include the obligation to perform a reasonable amount of mediation services for no charge or at a reduced charge.”  If the mediator is appointed by court order, the court may enforce the compensation arrangement, including by use of contempt powers.  If the mediator is not appointed by court order, only contract remedies would be available for enforcement of the fee arrangement.

(d) Scheduling mediation.  Upon entry of an order for mediation, the parties shall contact the mediator within 7 days to schedule the first mediation session.  The first mediation session shall be held within 35 days after an entry of the order for mediation unless good cause exists for scheduling on a later date.

Committee Comment:  Prompt commencement of mediation is desirable, but some flexibility also is necessary, including to accommodate the schedules of mediators. Hence, the parties are directed to contact the mediator within 7 days of the order of mediation and to schedule the first session within 28 days after an entry of the order for mediation “unless good cause exists for scheduling a later date.” The previous version of Cook Co. Cir. Ct. R. 13.4(e) provided:  “The mediation process shall commence pursuant to Ill. S. Ct. R. 923(a)(3) (eff. July 1, 2006) or as soon as practicable after any issue arises as set forth in this Rule.”

(iv) Proceedings during ADR.

(a) Effect upon existing orders.  Upon entry of an order submitting an issue to mediation or commencement of another form of ADR, all existing orders shall remain in full force unless the court modifies or terminates an existing order upon the motion of either party, or the attorney for the child, guardian ad litem or child representative, or on the court’s own motion.  Discovery during mediation is governed by Cook Co. Cir. Ct. R. 13.4(e)(viii).  The court in its discretion may suspend the filing of motions without leave of court and suspend any proceedings for temporary relief or other relief while mediation or another form of ADR is in progress, except in cases of emergency.  The parties may not proceed to hearing on a contested issue without leave of court while mediation or another form of ADR is in progress, except in cases of emergency.

Committee Comment:  While a case is being mediated or another ADR procedure is being utilized, existing orders shall remain in full force unless the court orders otherwise.  Thus, for example, orders for child support, spousal support, payment of particular family expenses, and parenting time would remain in effect during mediation unless the court orders otherwise.  To facilitate ADR and to conserve resources of the court and the parties, or for other good reason, the court may suspend the filing of motions without leave of court and suspend proceedings while ADR is being utilized, except in emergencies.  In all events, except in emergencies, contested hearings may not proceed during ADR without leave of court.

(b) Status call.  The order submitting an issue to mediation or the utilization of another form of ADR does not excuse the requirement of Cook Co. Cir. Ct. R. 13.4(h) that all cases shall be called for status report no later than 6 months after the case is filed.  Failure of the petitioner to answer the status call shall result in a dismissal for want of prosecution.

Committee Comment:  Cook Co. Cir. Ct. R. 13.4(h) also deals with status calls and provides:  “The number and frequency of automatic status calls during a calendar year shall be pursuant to order of the Presiding Judge of the Domestic Relations Division. Notice of the first status for any case shall be sent by the Clerk of the Circuit Court to the attorneys of record by postcard no less than 30 days prior to the commencement of said call and shall also be published in a newspaper of general circulation and posted in the courtroom. All cases shall be called for status report no later than 6 months after the case is filed. Failure of the petitioner to answer the status call shall result in a dismissal for want of prosecution.”

(c) Effect upon 18-month time limit.  Entry of an order submitting an issue to mediation or utilization of another form of ADR may establish good cause for extending the 18-month time limit under Ill. S. Ct. R. 922.

Committee Comment:  A goal of these rules is to encourage good faith alternative dispute resolution in order to promote settlements that are in the best interests of children. This rule is intended to clarify that the time spent in ADR in which the parties are attempting to settle custody-related issues should not prejudice the parties’ time necessary to prepare the case for trial.  However, these rules should not be used to waste time or delay a case for reasons other than seeking to resolve the dispute outside of court.  Ill. S. Ct. R. 922 (eff. July 1, 2006) provides:  “All child custody proceedings under this rule in the trial court shall be resolved within 18 months from the date of service of the petition or complaint to final order. In the event this time limit is not met, the trial court shall make written findings as to the reason(s) for the delay. The 18-month time limit shall not apply if the parties, including the attorney representing the child, the guardian ad litem or the child representative, agree in writing and the trial court makes a written finding that the extension of time is for good cause shown. In the event the parties do not agree, the court may consider whether an extension of time should be allowed for good cause shown.”

(v) Mediation Procedure.

(a) Submission of documents.  A mediator may require that each party submit to the mediator no later than 3 business days before a mediation session, and serve on the opposing party, a mediation summary that provides the following information, where relevant:

(1) the facts and circumstances of the case;

(2) the issues in dispute;

(3) copies of the party’s “Disclosure Statement,” “Proof of Income,” and “Custody Disclosure Statement,” when applicable, as provided by Cook Co. Cir. Ct. Rs. 13.3.1, 13.3.2 and 13.3.3.

The mediator may request each party to produce other documents or information as is reasonable under the circumstances.  To enforce production requests, either party, or the attorney for the child, guardian ad litem or child representative, may file a motion to order production, or the court may order production on its own motion. Failure to comply with the reasonable requests of the mediator may subject the non-complying party to sanctions imposed by the court.

Committee Comment:  The portion of the rule requiring the parties provide information about “the facts and circumstances of the case” and “the issues in dispute” is derived from Michigan Court Rule 3.216(H)(2) (eff. September 5, 2013).  The specific documents that a mediator may request the parties to submit under Cook Co. Cir. Ct. R. 13.4(e)(v)(a)(3) are the same as those the parties are required to serve on each other under Cook Co. Cir. Ct. Rs.13.3.1, 13.3.2 and 13.3.3.  While the parties may file a motion to enforce the mediator’s production requests, the mediator does not have standing to present such a motion.

(b) Attendance of parties.  The parties must attend the mediation session in person unless excused by the mediator.  If a party fails to appear at a duly noticed mediation session without good cause, the court may enter such orders as it deems appropriate under the circumstances, including sanctions against a party for failure to appear.

Committee Comment:  This rule is derived from the previous version of Cook Co. Cir. Ct. R. 13.4(e)(iv) (eff. October 16, 2012), which provided:  “If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon notice and motion, may enter an order the court deems appropriate under the circumstances, including sanctions against a party for failure to appear.”

(c) Presence of counsel and other persons.  An attorney or other individual designated by a party may accompany the party to and participate in a mediation.  If the other individual is a minor child, the parties and the mediator shall agree to the child’s participation.  A waiver of participation given before the mediation may be rescinded.  Parties and their respective attorneys or designated individuals shall be permitted to confer privately at any time.

Committee Comment.  The first and third sentences of Cook Co. Cir. Ct. R. 13.4(e)(v)(c) are taken verbatim from the Uniform Mediation Act, 710 ILCS 35/10 .  In many mediations, the mediator may prefer that only the parties attend, but the law allows a party to mediation to be accompanied by an attorney or other designated individuals.  See also Cook Co. Cir. Ct. R. 20.04(c) (Law Div.)(eff. April 5, 2004), Cook Co. Cir. Ct. R. 21.04(c) (Chancery Div.) (eff. August 1, 2013) and Michigan Court Rule 3.216(H)(4).  The National Conference of Commissioners on Uniform State Law “Comment” to Section 10 of the Uniform Mediation Act (adopted in Illinois at 710 ILCS 35/10) states: “Some parties may prefer not to bring counsel. However, because of the capacity of attorneys to help mitigate power imbalances, and in the absence of other procedural protections for less powerful parties, the Drafting Committees elected to let the parties, not the mediator, decide.”  The Uniform Mediation Act approved by the National Conference of Commissioners on Uniform State Law (adopted in Illinois at 710 ILCS 35/1 et seq.) with comments is available online at:

http://www.uniformlaws.org/shared/docs/mediation/uma_final_03.pdf (last accessed February 21, 2014)

The new Cook Co. Cir. Ct. R. 13.4(e), which provides greater autonomy to the parties, eliminates theconflict between Section 10 of Illinois’Uniform Mediation Act (710 ILCS 35/10) and the previous version of Cook Co. Cir. Ct. R. 13.4(e) (eff. October 16, 2012).  The previous Rule 13.4(e)(ix) provided:  “Except as otherwise provided in this rule, the mediator shall have authority to exclude all persons other than the parties from conferences at which negotiations are to occur.”  The new Cook Co. Cir. Ct. R. 13.4(e) also harmonizes subsection (e)(v)(c) with subsection (e)(v)(d)(6) regarding participation of minor children.  In the circumstance where one party wishes to have his or her attorney present at a mediation session but the other party does not or does not have an attorney, the mediator might consider caucusing separately with each party.  See Cook Co. Cir. Ct. R. 13.4(e)(v)(e).

(d) Initial duties of mediator.  Before mediation may begin, the mediator shall:

(1) screen for impediments to mediation, with the screening to be conducted in-person and separately for each party and with the information to be kept confidential from the other party;
(2) advise the parties that the mediator neither represents nor advocates for either party and will not provide therapy or counseling to either party;
(3) explain to the parties that no legal advice will be provided, although the mediator may provide legal information;
(4) advise the parties that each has a right to consult with an attorney at anytime during the mediation process;
(5) explain that the mediator may speak to either party or either party’s attorney without the other party or the other party’s attorney present;
(6) advise the parties that minor children may be allowed to participate if the parties and the mediator agree;
(7) define and describe the process of mediation to the parties, including the appropriate procedure when evidence of impediment to mediation becomes apparent after mediation is in progress;
(8) explain the mandated reporting requirements of the Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq. as well as the application of rules of privilege and confidentiality in the mediation process;
(9) disclose the nature and extent of any existing relationships with the parties or their attorneys and any personal, financial, or other interests that could result in bias or a conflict of interest on the part of the mediator;
(10) determine the issues to be mediated; and
(11) confirm the fee arrangements with the parties in writing.

Committee Comment:  This rule is derived from the previous version of Cook Co. Cir. Ct. R. 13.4(e) (vii) and(e)(viii) (eff. October 16, 2012). In the above list of duties, the following items are in the previous version of the rule:  (1), (2), (3), (4) (regarding legal advice), (7), (8), and (9). Additional duties of mediators are taken from rules of other circuit courts in Illinois.

Regarding Cook Co. Cir. Ct. R. 13.4(e) (v)(d)(1) and (7), “impediment to mediation” is defined in 13.4(e)(i)(b)(3).

Regarding Cook Co. Cir. Ct. R. 13.4(e)(v)(d)(3), the differentiation between “legal information” (which the mediator may provide) and “legal advice” (which the mediator may not provide) is not always precise.  Generally, however, “legal information” is a description of the law and the legal process whereas “legal advice” involves analyzing the application of the law to a litigant’s situation or making a suggestion of what action a litigant should take on a legal issue.

Regarding Cook Co. Cir. Ct. R. 13.4(e)(v)(d)(8), under 325 ILCS 5/4 of the Abused and Neglected Child Reporting Act, 325 ILCS 5/1, et seq. , categories of mandated reporters who are likely to be conducting mediations include:  social workers, licensed professional counselors, licensed clinical professional counselors, registered psychologist and assistants working under the direct supervision of a psychologist and psychiatrists.  The list of mandated reporters does not explicitly include attorneys or mediators. However, Public Act  98-67 amended 325 ILCS 5/4 (effective July 15, 2013) to provide:  “The reporting requirements of this Act shall not apply to the contents of a privileged communication between an attorney and his or her client or to confidential information within the meaning of Rule 1.6 of the Illinois Rules of Professional Conduct relating to the legal representation of an individual client.”

 

For further guidance regarding the conduct of mediation, see: (A) the “Model Standards of Conduct for Mediators” (2005), which were approved (or adopted) by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution, and which  are available online at:  http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_conduct_april2007.authcheckdam.pdf  (last accessed Feb. 21, 2014); and (B) the "Model Standards of Practice for Family and Divorce Mediation" (2000) which were approved by the Association of Family and Conciliation Courts and are available online at: http://www.afccnet.org/Portals/0/PublicDocuments/CEFCP/ModelStandardsOfPracticeForFamilyAndDivorceMediation.pdf (last accessed Feb. 21, 2014).

(e) Private consultations with mediator.  The mediator may, during the course of mediation, speak privately to a party and the party’s attorney outside the presence of other parties and their attorneys.  Likewise, a party to the mediation and the party’s attorney may request to speak privately with the mediator outside the presence of other parties and their attorneys.

Committee Comment:  This rule is derived from Cook Co. Cir. Ct. Rs. 20.04(b) (Law Div.) (eff. April 5, 2004) and 21.04(b) (Chancery Div.) (eff. August 1, 2013).

(f) Assistance of nonparties.  If the mediator believes it would be helpful to the settlement of an issue, the mediator may, with the consent of the parties, obtain information or assistance from nonparties and request their participation in the mediation.

Committee Comment:  This rule is derived from Michigan Court Rule 3.216(H)(4)(eff. September 5, 2013).

(g) Evaluative Mediation.  With consent of the parties and the mediator, the mediation may include Evaluative Mediation.  The mediator’s recommendation pursuant to Evaluative Mediation may not be submitted or made available to the court without the consent of the parties.  The identity of the party or parties who rejected the mediator’s recommendation shall not be disclosed to the court.

Committee Comment:  “Evaluative Mediation” is defined in Cook Co. Cir. Ct. R. 13.4(e)(i)(b)(2). This rule is derived from Michigan Court Rules 3.216(A)(2) and 3.216(I) (eff. September 5, 2013).

(h) Adjournment.  The mediator may adjourn the mediation session at any time and may set times for reconvening the adjourned session. The mediator shall confirm in writing to all parties the date, time, and place for reconvening the adjourned session.

Committee Comment:  This rule is derived Cook Co. Cir. Ct. Rs. 20.04(d) (Law Div.) (eff. April 5, 2004) and 21.04(d) (Chancery Div.) (eff. August 1, 2013).

(i) Termination.  A party may at any time move to terminate mediation for good cause shown.

(vi) Completion of Mediation.

(a) Events constituting completion of mediation.  Mediation shall be considered to have been completed only upon the happening of one of the following events:

(1) The entry by the parties into a written settlement agreement which is signed by each of the parties;
(2) Entry of an order or judgment of the court approving an oral settlement agreement;
(3) Certification by the mediator that the mediation has been concluded without the parties reaching agreement on any issues or with the parties reaching agreement as to some but not all issues;
(4) Entry of an order by the court, upon the motion of a party or the mediator, or upon the court’s own motion, terminating the mediation for good cause shown.

(b) Full or partial agreement.  If a full or partial agreement is reached in mediation, the mediator shall confirm the settlement terms in a written memorandum of understanding.  In the discretion of the mediator, the attorneys for the parties may be asked to draft the written agreement.

(c) Report of mediation.  Within 7 days of the completion of mediation, the mediator shall so advise the court on a court-approved form stating only the date of completion of the process, who participated in the mediation, whether settlement was reached, and whether further mediation is contemplated.

(d) When a settlement agreement is bindingSettlement agreements reached in mediation on child-related issues are not binding upon the parties or the court unless:  (i) the agreement is in writing, signed by the parties, and approved by the court, or (ii) the agreement is oral, has been stated in the record, and has been approved by the court.  Child-related issues include: (1) initial determinations of custody, visitation, or parenting time; (2) modification of custody, visitation, or parenting time; (3) removal or relocation of the child; and (4) child support.  Settlement agreements reached in mediation on other issues, including, but not limited to, division of property and awards of maintenance, are binding upon the parties and the court if:  (i) the agreement is in writing, signed by the parties, and the court does not find the agreement unconscionable, or (ii) the agreement is oral, has been stated in the record, and the court does not find the agreement unconscionable.  Settlement agreements on the issues referenced in this section shall be set forth or identified in a judgment or order of the court.  See Cook Co. Cir. Ct. R. 13.4(e)(ix)(a) regarding privileged communications during mediation.

Committee Comment:  Cook Co. Cir. Ct. R. 13.4(e)(vi)(a), (b), and (c) are derived from Cook Co. Cir. Ct. R. 20.05 (Law Div.) (eff. April 5, 2004), Cook Co. Cir. Ct. R. 21.04(e)(Chancery Div.) (eff. August 1, 2013), Cook Co. Cir. Ct. R. 21.05(Chancery Div.) (eff. August 1, 2013) [particularly for (a) and (b)] and Michigan Court Rule 3.216(H)(6) (September 5, 2013) [for (c)].  Portions of Cook Co. Cir. Ct. R. 13.4(e)(vi)(d) reflect the previous Cook Co. Cir. Ct. R. 13.4(e)(xvi) (eff. October 16, 2012), which related to mediation of custody issues. The previous Rule 13.4(e)(xvi) provided:  “Agreements reached in mediation are not binding on the parties unless memorialized in a court order and approved by the court.”  The addition of agreements for removal or relocation of the child to Cook Co. Cir. Ct. R. 13.4(e)(vi)(d) accords with Section 609 of the Illinois Marriage and Dissolution of Marriage Act which provides in part: “The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children.” 750 ILCS 5/609 .  Removal or relocation issues may also arise in the context of disputes over intra-state relocations. The provisions of Cook Co. Cir. Ct. R. 13.4(e)(vi)(d), governing settlement of issues other than child-related issues, accord with Section 502 of the Illinois Marriage and Dissolution of Marriage Act which provides: 

"(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children. 

(b) The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable." 

As noted in Cook Co. Cir. Ct. R. 13.4(e)(ix)(a), under Illinois’ Uniform Mediation Act (710 ILCS 35/1 et seq.) communications during mediation regarding terms of settlement agreements are confidential and privileged.  The Uniform Mediation Act implies that oral agreements reached in mediation remain privileged communications until reduced to written agreements signed by the parties.  Section 6(a) of that act provides:  “There is no privilege . . . for a mediation communication that is:  (1) in an agreement evidenced by a record signed by all parties to the agreement . . . .”  710 ILCS 35/6(a)(1) .  Thus, the Uniform Mediation Act’s exception to privilege does not apply to oral agreements reached in mediation.  However, the parties may place their oral agreement on the record in court, and such an agreement is enforceable under Section 502 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/502).750 ILCS 5/502

 

(vii)Personal Safety; Presence of Sheriff’s Deputy.  At all times while any mediation is occurring at Family Mediation Services, a Cook County Sheriff’s Deputy shall be posted at the mediation facility to provide for the personal safety of the mediators and parties.

Committee Comment:  This rule is derived from the previous Cook Co. Cir. Ct. R. 13.4(e)(xvii) (eff. October 16, 2012). The requirement of the posting of a Cook County Sheriff’s Deputy does not apply to use of private mediators.

(viii) Discovery.

(a) Issues of custody, visitation, parenting time, or removal or relocation of the child.  Unless otherwise agreed by the parties, or ordered by the court, the parties may not engage in discovery on issues of custody, visitation, parenting time, or removal or relocation of the child while those issues are being mediated.

Committee Comment:  In most cases, resources can be saved without prejudice to the parties by limiting discovery of child-related issues during mediation.  Generally, parties will be aware of the main facts related to child-related issues.  Moreover, experience has shown that the conduct of discovery of custody-related issues can undermine the effectiveness of mediation.  In appropriate circumstances, however, discovery could proceed during mediation of custody-related issues by stipulation of the parties or order of the court.  The previous Cook Co. Cir. Ct. R. 13.4(e)(iii) (eff. October 16, 2012), provided:  “The Domestic Relations Division judge shall have discretion to stay discovery related to the mediation until such time as mediation is concluded.”

(b) Other issues.  Nothing in these rules shall be construed to limit or defer discovery regarding financial issues.  However, the court may in its discretion limit or stay discovery related to mediation of financial and other issues while those issues are being mediated.

Committee Comment:  Unlike custody-related issues, one or both parties to a dispute regarding financial issues often may not be aware of important facts regarding the financial issues.  Thus, discovery is not automatically stayed during mediation of financial issues, although a court has discretion to stay discovery during mediation of financial issues.

(ix) Confidentiality and Privilege.

(a) General rule.  Mediation communications shall be confidential and privileged, not subject to discovery or admissible in evidence in accordance with the provisions of the Uniform Mediation Act, 710 ILCS 35/1, et seq.  Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

Committee Comment:  The previous rules governing confidentiality and privilege were Cook Co. Cir. Ct. R. 13.4(e)(ix), (x) and (xi) (eff. October 16, 2012).  The previous rules are generally similar to the Cook Co. Cir. Ct. R. 13.4(e)(ix), but the previous rules did not make reference to the Uniform Mediation Act, 710 ILCS 35/1, et seq.

(b) Privilege against Disclosure; Waiver and Preclusion of Privilege; Exceptions to the Privilege.  The privilege against disclosure, the waiver and preclusion of privilege, and the exceptions to the privilege in mediation shall be governed in accordance with the Uniform Mediation Act, 710 ILCS 35/1, et seq.

Committee Comment:  This rule is derived from Cook Co. Cir. Ct. Rs. 20.07 (Law Div.(eff. April 5, 2004)) and 21.07 (Chancery Div.) (eff. August 1, 2013).  Since confidentiality and privilege are governed by the Illinois Uniform Mediation Act, reference is made to that statute.  The proposed rule does not include provisions regarding confidentiality and privilege for forms of alternative dispute resolution other than mediation.  The scope of confidentiality and privilege in connection with forms of alternative dispute resolution other than mediation will be subject to agreements by which the parties entered into those forms of ADR, as well subject to laws that may govern those forms of ADR.  See Cook Co. Cir. Ct. R. 13.4(e)(v)(g) which provides:  “The mediator’s recommendation pursuant to Evaluative Mediation may not be submitted or made available to the court without the consent of the parties.”

(x) Qualifications of Mediators.

(a) Family Mediation Services.  Mediators hired by Family Mediation Services should possess a Master’s Degree in Social Work, Psychology, Counseling, or a Juris Doctorate degree or an equivalent in a related field, and at least 5 years experience in mediation, mental health or a related field. Mediators will be compensated according to the grade level as contained on the schedule of salaries established by the Cook County Board of Commissioners. Prior to conducting mediation conferences, mediators shall be required to attend a 40 hour approved mediation training course which shall cover conflict resolution and mediation process and techniques. All mediators shall be required to attend continuing education programs as determined by the Director of Family Mediation Services which shall include, at a minimum, psychological issues and needs of children in cases of separation as well as family dynamics.

Committee Comment:  This rule, which changes the name of the formerly named Marriage and Family Counseling Service to more accurately reflect the activities of the Service, derives from the previous Cook Co. Cir. Ct. R. 13.4(e)(5) (eff. October 16, 2012).


(b) Court-certified private mediators.

(1) The Presiding Judge of the Domestic Relations Division shall establish and maintain a list of court-certified mediators (“certified mediators”).  Certified mediators shall possess the following minimum qualifications and shall serve at the discretion of the Presiding Judge:
  • Illinois license as an attorney, psychologist, social worker, or marriage and family therapist;
  • Three or more years experience in the mediator’'s applicable profession;
  • Completion of a minimum 40-hour mediation training program as approved by the Presiding Judge of the Domestic Relations Division;
  • Completion of continuing education as prescribed by the Presiding Judge of the Domestic Relations Division from time to time; and
  • Knowledge and competence in the following areas as applicable to the issues to be mediated and in identifying impediments to mediation:  domestic relations law; the impact of family conflict on parents, children and other participants; child development; participation of children in mediation; family violence; child abuse and neglect; and the impact of culture and diversity on domestic relations disputes.

(2) Individuals who wish to be placed on the list of certified mediators for appointment as mediator for discretionary mediation under Cook Co. Cir. Ct. R. 13.4(e)(ii)(c) must be Illinois licensed attorneys.  Appointments from the list of certified mediators for mandatory mediation under Cook Co. Cir. Ct. R. 13.4(e)(ii)(b) must be by stipulation of the parties.  See Cook Co. Cir. Ct. R. 13.4(e)(iii)(b) requiring the appointment of Family Mediation Services for mandatory mediation under Cook Co. Cir. Ct. R. 13.49(e)(ii)(b).

(3) Individuals meeting the requirements above who wish to become certified mediators shall file an application with the Presiding Judge.  The application shall provide proof by affidavit supported by documentation of the requirements above, the hourly rate that the mediator will charge for mediation services, the business address in Cook County where the mediation services will be provided, coverage by professional responsibility insurance that covers the mediation process, membership in good standing in the professional organization(s) of the individual’s discipline, and such other information as the Presiding Judge may require.  The Presiding Judge shall ordinarily accept the application or reject it for cause within 90 days of receipt of the application.  The Presiding Judge may also remove an individual from the list of certified mediators for cause.  The Presiding Judge may establish an advisory committee to assist in the evaluation of applicants and certified mediators.

(4) Individuals who become certified mediators may be placed on the list of certified mediators for a fixed period of time, not to exceed five years, at the end of which time, the individual may reapply for continued listing.

(5) Acceptance of a listing as a certified mediator may include the obligation to perform a reasonable amount of mediation services for no charge or at a reduced charge.  The obligation of the certified mediator to provide services at no charge or at a reduced charge may not exceed 20 hours of annual services provided by the mediator.

Committee Comment:  These qualifications and procedures applicable to court-certified mediators were arrived at after review and consideration of the previous Cook Co. Cir. Ct. Rs. 13.4(e)(v) (eff. October 16, 2012), 20.08 (Law Div.) (eff. April 5, 2004), 21.08 (Chancery Div.); Michigan Court Rule 3.216(F), (G) (eff. September 5, 2013); and the rules of other Illinois Circuit Courts.

Certified mediators of custody-related disputes must have Illinois licensure as an attorney, psychologist, social worker, or marriage and family therapist.  Certified mediators of financial disputes must have Illinois licensure as an attorney. Under Cook Co. Cir. Ct. R. 13.4(e)(iii)(a), the parties may stipulate to a private mediator of any domestic relations dispute who does not meet the qualifications in Cook Co. Cir. Ct. R. 13.4(e)(x).

The list of areas of knowledge a mediator must possess [the fifth bullet-point under Cook Co. Cir. Ct. R. 13.4(e)(b)(1)] is drawn from The Model Standards of Practice for Family and Divorce Mediation, Standard II(A) (2000), developed by the Association of Family and Conciliation Courts and other organizations.  The Model Standards are available online at: http://www.mediate.com/articles/afccstds.cfm (last accessed February 21, 2014).  The rule specifies that the areas of knowledge shall be “as applicable to the issues the mediator will handle.”  Thus, a person who will mediate only financial disputes will not necessarily need to have knowledge of child-related issues, and a person who will mediate only issues related to custody, visitation and removal or relocation, will not necessarily need knowledge of financial issues relevant to domestic relations law.

The fifth bullet-point under Cook Co. Cir. Ct. R. 13.4(e)(b)(1) requiring the applicant to have “competence” in the issues to be mediated is drawn in part from American Bar Association Model Rule of Professional Conduct 1.1 (adopted in 1983), which provides:  “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

(c) Conflicts of interest of mediators.

(1) The duty of mediators to disclose conflicts of interest and the right of parties to waive conflicts of interest are governed by the Uniform Mediation Act, 710 ILCS 35/9.

(2) No mediator associated with a law firm or a counseling agency shall mediate a dispute when the mediator knows or reasonably should know that another attorney or counselor associated with that firm or agency would be prohibited from undertaking the mediation.  A mediator who would otherwise be disqualified from mediation as a result of imputed disqualification may undertake the mediation only under the following circumstances:  (i) there has been full disclosure to both parties about the conflict of interest and the imputed disqualification of the mediator, including the extent to which information is shared by personnel within the agency; and (ii) all parties consent to the mediation in writing.

Committee Comment:  The first paragraph of Cook Co. Cir. Ct. R. 13.4(e)(x)(c) follows existing state law (Uniform Mediation Act) regarding disclosure of conflicts of interest.  The second paragraph of subsection (e)(x)(c) is derived from Lake Co. Cir. Ct. R. 11.13(G) (19th Cir.)(eff. August 6, 2010), although the waiver provision of the Lake County Rule applies only to therapist-mediators.

The previous Rule 13.4(e)(vi)(eff. October 26, 2012) provided: “No mediator shall continue service on a case in which his or her impartiality is impaired by any personal, financial or other relationship with either party or his or her counsel. If the mediator has or has had any conflict of interest, including, but not limited to, a current or previous therapeutic, personal, or economic relationship with either any child, stepparent, other relative, counsel, or anyone else involved in the case, he or she shall decline the appointment.”

(xi) Immunity of Mediators.  A person appointed to act as a mediator under Cook Co. Cir. Ct. R. 13.4(e)(iii)(a) or Cook Co. Cir. Ct. R. 13.4(e)(iii)(b) shall have judicial immunity in the same manner and to the same extent as a judge, provided that in order for such immunity to extend to a private mediator appointed by stipulation under Cook Co. Cir. Ct. R. 13.4(e)(iii)(a), a court order approving the stipulation is required.

Committee Comment:  Ill. S. Ct. R. 99(b)(1)( eff. Mar. 1, 2013) provides:  “Each judicial circuit electing to establish a mediation program shall adopt rules for the conduct of the mediation proceedings. A person approved by the circuit to act as a mediator under these rules shall have judicial immunity in the same manner and to the same extent as a judge.” In accordance with Rule 99(b)(1), it is the intention of the Committee that court-certified private mediators, see Cook Co. Cir. Ct. R. 13.4(e) (x)(b), as well as private mediators to whom the parties have stipulated in a court order to mediate a specific matter, see Cook Co. Cir. Ct. R. 13.4(e) (iii)(a), will have judicial immunity. However, nothing in these rules is intended to extend such immunity to mediators who are neither court-certified nor designated in a stipulated court order to mediate a specific matter.

(xii) Reporting to the Illinois Supreme Court.

(a)  Mandatory mediationThe procedures for reporting information and statistics to the Illinois Supreme Court regarding mandatory mediation ordered pursuant to this rule shall be governed by Ill. S. Ct. R. 905 and any other applicable Illinois Supreme Court Rule.

(b) Discretionary mediation The Domestic Relations Division through the Office of the Chief Judge shall report the number of cases submitted to discretionary mediation pursuant to this rule to the Illinois Supreme Court. This report shall also describe the type of case submitted to mediation.  The report shall be submitted to the Illinois Supreme Court for the calendar year not later than the first day of March of the next calendar year. 

Committee Comment:  This rule is derived in part from Cook Co. Cir. Ct. Rs. 20.09 (Law Div.) (eff. April 5, 2004), 21.09 (Chancery Div.) (eff. August 1, 2013).  In addition, Ill. S. Ct. R. 99(b)(2)(x) (eff. Mar. 1, 2013 ) requires that circuit rules address the “Mechanism for reporting to the Illinois Supreme Court on the mediation program.”

(xiii) Evaluation of Program.

(a) Evaluation of mandatory mediationThe procedure for evaluation of mandatory mediation shall be governed by Ill. S. Ct. R. 905 and any other applicable Illinois Supreme Court Rule.  The Presiding Judge may expand on the procedures established by Illinois Supreme Court Rules.

(b) Evaluation of discretionary mediationThe court shall collect information regarding the effectiveness of the mediation program.  Such information shall include the parties’ perceptions of having been heard, having received sufficient information, having been treated fairly, and having been treated with dignity.  To facilitate this activity, mediators will supply attorneys or parties with evaluation forms at the completion of mediation.  The attorneys are encouraged to complete, and have their clients complete, the forms and return them to the court within 10 days of the final mediation session. Mediators are encouraged to complete an evaluation form and submit the court within 10 days of the final mediation session. 

Committee Comment:  This rule is derived from Cook Co. Cir. Ct. Rs. 20.11 Law Div.) (eff. April 5, 2004) and 21.11 (Chancery Div.) (eff. August 1, 2013).

(c) Evaluation of other forms of alternative dispute resolutionThe Presiding Judge may establish procedures for evaluation of forms of alternative dispute resolution other than mediation.

(d) Advisory Committee.  The Presiding Judge of the Domestic Relations Division shall establish an advisory committee whose membership shall consist of at least 6 persons, including 2 Domestic Relations Division judges, the Director of Family Mediation Services, 2 practicing attorneys in the field of domestic relations, and a practicing mental health professional. Members of the committee shall be appointed by the Presiding Judge for terms not to exceed two years.  From time to time, as requested by the Presiding Judge, the committee shall assist the Presiding Judge of the Domestic Relations Division in reviewing these rules and recommend whether any changes should be made in the program.

Committee Comment:  The rule regarding the Advisory Committee is derived from the previous Cook Co. Cir. Ct. R. 13.4(e)(xx)(eff. October 16, 2012).

(f) Parenting Education Program - Parenting education programs are available to protect the child(ren)'s best interest pursuant to Section 404.1 of the Illinois Marriage and Dissolution of Marriage Act and Illinois Supreme Court Rule 924. The Circuit Court of Cook County has established an in class program called Focus on Children, and has authorized an online program to be used as an alternative to the in class program.

(i) For purposes of this rule 13.4(f), Authorized parenting education program shall mean Focus on Children or the online parenting education program authorized by the Presiding Judge of the Domestic Relations Division. The identity of the authorized online parenting education program shall be established by general order of the Domestic Relations Division.

(ii) All parents of minor children involved in any action involving custody or visitation, including post-decree proceedings for modification of custody or visitation or for removal, shall attend and complete an authorized parenting education program, except for good cause shown.

(iii) The authorized parenting education programs shall be educational in nature and not designed for individual therapy. Each program may be divided into sessions, which in the aggregate shall be a minimum of four (4) hours in duration.

(iv) Parties shall complete an authorized parenting education program within the time period set forth by Illinois Supreme Court Rule 924, unless excused by the Court, in its discretion, for good cause shown. A finding of good cause shall include a finding that excusing one or both parents from attendance is in the best interests of the child. If the Court excuses a party from attending an authorized parenting education program, the Court shall make a written finding in the record stating why the party is excused.

(v) Parties may complete the online authorized parenting education program without a court order. However, completion of the online authorized parenting education program shall occur no earlier than sixty (60) days prior to the initiation of the proceedings and no later than sixty (60) days after the initial case management conference

(vi) All parties ordered to mediation or emergency intervention shall be required to attend and complete the in class Focus on Children program, unless excused by the Court for good cause shown. Those parties who are referred to mediation shall complete Focus on Children prior to their first mediation date. For purposes of this paragraph, the parties= mediation intake date shall not be considered the first mediation date.

(vii) A party residing outside of Cook County, Illinois, may complete the authorized online parenting education program. If said party is ordered by the court to attend an in class parenting education program, the court may accept evidence of participation in a program similar to Focus on Children authorized by any court of competent jurisdiction in the state or county in which the party resides.

(viii) Within thirty (30) days of successfully completing an authorized parenting education program, the party shall file with the Clerk of the Circuit Court a certificate attesting to the party=s successful completion of the program. A party=s failure to complete an authorized parenting education program may result in sanctions imposed by the Court.

(ix) No final judgment regarding custody, visitation, or removal shall be entered without the filing of the parties= certificates of completion, unless attendance at an authorized parenting education program is excused by the Court for good cause shown or the Court in its discretion allows the parties additional time to file their certificates.

(x) The costs of authorized parenting education programs shall be established by general order of the Domestic Relations Division and shall be paid by the parties unless waived pursuant to 735 ILCS 5/5-105, 5/5-105.5, or Illinois Supreme Court Rule 298. Prior to registering for an authorized parenting education program, any party receiving a fee waiver shall notify the parenting education program of the waiver.

(xi) Parties registered for Focus on Children who do not complete the program or cancel their registration less than twenty-four (24) hours in advance may be required to re-register and may be required to pay an additional fee. Parties who do not complete the authorized online program within thirty (30) days of registration for the program may be required to re-register and may be required to pay an additional fee.

(xii) Nothing in these rules shall preclude the Court from ordering either party to attend additional authorized parenting education courses.

[Amended, effective October 16, 2012].

(g) Supervision of Discovery - Discovery shall be conducted pursuant to Illinois Supreme Court Rules, and all motions, petitions and applications concerning discovery shall be brought before the appropriate judge for supervision and enforcement.  

(i)  The time for the commencement, completion and compliance with discovery shall be governed by Illinois Supreme Court Rules and as the judge may direct.   

(ii)  After discovery closes, except as provided by Illinois Supreme Court Rules 213(i) and 214, no discovery shall be allowed except as specifically approved by order upon a showing of extraordinary circumstances.

(iii)  Every objection to an interrogatory or answer shall include the interrogatory   and/or the answer giving rise to the objection. 

(iv) Every Illinois Supreme Court Rule 214 Affidavit of Compliance shall, in addition to the requirements of the Illinois Supreme Court Rule, list with specificity the documents produced in accordance with the request. 

(h) Status Call - The number and frequency of automatic status calls during a calendar year shall be pursuant to order of the Presiding Judge of the Domestic Relations Division.  Notice of the first status for any case shall be sent by the Clerk of the Circuit Court to the attorneys of record by postcard no less than thirty (30) days prior to the commencement of said call and shall also be published in a newspaper of general circulation and posted in the courtroom. All cases shall be called for status report no later than six (6) months after the case is filed. Failure of the petitioner to answer the status call shall result in a dismissal for want of prosecution.  

(i)  Case Management Conferences - Case management conferences shall be held as prescribed by Illinois Supreme Court Rules 218, 904 and 923.

(j) Pre-trial Settlement Conference

(i)  At the request of any party by written motion or by order of the judge, a settlement pre-trial conference may be held to attempt to resolve contested issues.

(ii)  The completed Uniform Pre-Trial Memorandum, in the form promulgated by the Presiding Judge of the Domestic Relations Division, shall be delivered to the judge and each attorney of record and unrepresented party no less than seven (7) days prior to the Settlement Pre- Trial Conference.  The Pre-Trial Memorandum shall not become part of the common law record in the case unless otherwise agreed to by the parties.

(iii)  Failure to comply with this rule shall subject the non-complying party to sanctions, unless good cause is shown for failure to comply. 

(iv) Upon assignment to a trial calendar, the trial judge may conduct a pre-trial conference in addition to any previous conference(s). Participation in a pre-trial conference with the trial judge may constitute a waiver of a party’s right to a substitution of judge as permitted by 735 ILCS 5/2-1001(a)(2).  The trial judge may require the parties to waive their right to request a substitution of judge in the event the trial judge proceeds to conduct a pre-trial conference.

[Amended, effective April 28, 2014.]

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