19A.19 Child Protection Mediation and Facilitation Program
(i) Actions eligible for referral to mediation/facilitation.
(a) Child Protection Cases. Pursuant to Supreme Court Rule 905(a), the Child Protection Mediation and Facilitation Program (Program) shall make mediation available in all cases involving the custody of or visitation with a child that are initiated under article II of the Juvenile Court Act of 1987. The program focuses on issues impacting temporary or permanent custody and visitation including but not limited to: placement, communication, relationship building and mending, preventing and resolving conflict, services, child welfare and court processes, and back-up planning for older caregivers. Any matter or conflict that may be interfering in any way with visitation or any custody determination is appropriate for mediation.
(1) All new cases shall be ordered to the Program for a facilitation session at the conclusion of the temporary custody hearing where at least one parent is present and where the Guardianship Administrator of the Illinois Department of Children and Family Services or a private individual is appointed temporary custodian. In the event that no parents appear for the initial temporary custody hearing, the case shall be ordered to the Program for a facilitation session at the conclusion of the first hearing where at least one parent is present.
(2) At the court’s discretion new cases may be referred to the Program for the purpose of discussing matters identified in paragraph (a) when the court determines that it is in the child’s best interest that he or she remain in, or be returned to a parent’s care under an Order of Protection or a Continuance Under Supervision.
(3) At any time after the temporary custody hearing, if the court determines that a matter is appropriate for mediation the case shall be referred to mediation regardless of the stage of the child protection proceeding. Attorneys, social workers, CASA volunteers, family members, or any other individual involved in the case may request that it be referred to mediation. The Court may also refer cases to mediation sua sponte and over any party's objection.
(b) Other Cases. Pursuant to Supreme Court Rule 905(a), the Program shall make mediation available in all cases involving custody of or visitation with a child that are initiated under articles III and IV of Juvenile Court Act of 1987, and guardianship matters involving a minor under article XI of the Probate Act of 1975. Any matter or conflict that may be delaying or impeding visitation or any custody determination is appropriate for mediation. When the court determines that a matter is appropriate for mediation it shall be referred to mediation regardless of the stage of the proceeding. In such cases, attorneys, social workers, probation officers, family members, or any other individual involved in the case may request that it be referred to mediation. The Court may also refer cases to mediation sua sponte and over any party's objection.
(ii) Appointment, qualifications and compensation of the mediators.
(a) Appointment of Mediators. The Presiding Judge of the Child Protection Division, with the consent and approval of the Chief Judge of the Circuit Court of Cook County, will appoint mediators.
(b) Mediator Qualifications. Mediators shall possess one or more of the following: (1) a bachelor's, master's, or doctoral degree in psychology, social work, marriage and family therapy, conflict resolution, or other behavioral science, substantially in the field of juvenile and family law related to family relations, domestic violence, or child development, from an accredited college or university; (2) a Juris Doctorate degree with demonstrated experience; or (3) a background in mediation with experience acceptable to the Court to be served. All mediators hired after the adoption of this rule shall successfully complete a minimum 40-hour mediation training skill program conducted by the Center for Conflict Resolution or comparably recognized training program, or provide verifiable evidence of prior successful completion of such a program and recent mediation experience acceptable to the Presiding Judge of the Child Protection Division. Mediators shall also have knowledge and/or experience in the workings of the local child protection and juvenile court systems, the dynamics of child welfare administration, and local community resources.
(c) Mediator Compensation. Mediators will be compensated pursuant to personnel grade levels as approved by the Cook County Board.
(iii) Scheduling of mediation conferences. Referral to mediation or facilitation shall be made by Order to Mediation/Facilitation. Sessions shall be held at a location provided by the Court. When a case is referred to mediation or facilitation, program staff will prepare all necessary court orders and will work with court personnel, the parties, and other involved individuals to schedule a date and time for the initial mediation session and any subsequent sessions that may be required to fully address the referred issues and other issues raised during the initial session. All individuals expected to participate in mediation sessions must complete intake forms and submit them to mediation staff. When a case is ordered to mediation or facilitation, a return date before the Judge will also be set. After a case is scheduled, the program director has the authority to cancel a session for good cause after determining that a case is not appropriate for mediation and facilitation.
(iv) Conduct of the conferences.
(a) Who May Participate. The Court may order and the Program anticipates that parents, guardians, foster parents, attorneys, guardians ad litem, social workers, and CASA volunteers will actively participate in the sessions. Other professionals involved with the family, such as counselors, sponsors, and school personnel may be included. In addition, in some cases individuals involved with a participant in a supportive capacity may be permitted to accompany the participant to mediation and to participate in the session if his or her participation is likely to help resolve the issues. However, the actual list of participants included in any session will be determined on a case-by-case basis. Following the initial mediation or facilitation session, subsequent sessions may be scheduled which include various combinations of individuals who participated in the initial session, as well as others who did not previously participate. The mediators have the discretion to exclude an individual if they determine that doing so would advance the process and the discussion. The mediators may conduct a child interview prior to the session to determine whether it is appropriate for a minor to participate in the session. The minor's guardian ad litem, attorney, and/or case manager may be present during the interview. The Program staff shall make all final determinations as to the appropriateness of a minor's participation in a mediation/facilitation session.
(b) The Process. For all mediations and facilitations the Program typically utilizes a facilitative co-mediation model which involves: an orientation by one of the mediators; brief opening statements by each of the participants; open discussion facilitated by the mediators; and caucuses with select individuals in various combinations as needed.
(c) Use of Interpreters. Whenever possible, mediations, facilitations and caucuses shall be conducted in the shared language of the participants. When the participants speak different languages, court-certified interpreters will be assigned to translate.
(v) Discovery. Pursuant to the Uniform Mediation Act, 710 ILCS 35/1 et seq., mediation communications are privileged against disclosure and not subject to discovery or admissible in evidence in a judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery. Mediation communications are also privileged against disclosure and not subject to discovery or admissible in evidence in a legislative hearing or similar process. Disclosure of mediation communications shall not be compelled in any arbitration, administrative hearing, adjudication, civil action, or non-criminal proceeding in which, pursuant to law, testimony can be compelled to be given. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissable or protected from discovery solely by reason of its disclosure or use in mediation. For the purpose of this section and section (ix), communications made during facilitation sessions are also considered “mediation communications” as defined in the Uniform Mediation Act.
(vi) Absence of party at session and sanctions. Participation in all of the sessions required to address the issues referred to mediation, and other issues raised during the initial session, is mandatory for all persons ordered by the court to participate. A mandated person who fails to participate in a session may be subject to court-ordered sanctions. Upon agreement of those present, a session may proceed in the absence of an ordered individual if the mediators deem it appropriate.
(vii) Termination and report of mediation or facilitation session.
(a) Termination. Each session will end with the consensus of the parties unless a mediator determines the session should be terminated prior to such consensus. The mediators shall have the power to suspend or terminate the session if it is determined that it cannot be conducted in a safe and balanced manner. The mediator shall also suspend or terminate the session if it is determined that any party is unable to participate in an informed manner for any reason, including fear or intimidation.
(b) Mediation/Facilitation Report. A mediation/facilitation report, indicating the number of sessions conducted pursuant to the Order to Mediation/Facilitation, and a continuance order shall be completed by the mediators at the end of each session and submitted to the Court. The report shall also inform the Court if an ordered participant failed to appear. Additionally, the report shall indicate whether the participants reached full agreement, partial agreement, or no agreement. Any agreement reduced to writing shall be attached to the mediation/facilitation report. Oral agreements will be recorded as no agreement for the purpose of the mediation/facilitation report. If the mediation or facilitation did not occur, the report shall inform the Court why it did not occur, whether an informal discussion was facilitated amongst the participants in attendance, and whether the case has been or will be reset for mediation or facilitation. If, after the initial meeting, it was determined that the case was not suitable for mediation or facilitation at the time, the report will so indicate.
(viii) Finalization of agreement. If agreement is reached by the participants and they wish to reduce their agreement to writing, the mediators will assist them in memorializing their agreement. Any executed Memorandum of Agreement is tendered to the Court for approval. Once the Court approves and enters the Memorandum of Agreement, it is fully enforceable by the Court.
(ix) Confidentiality. Except as provided in paragraph (a) below, all mediation communications occurring during the course of the Child Protection mediation or facilitation process shall remain confidential in accordance with the terms of the Uniform Mediation Act. Mediation communications shall not be disclosed in meetings, case reviews, staffings, or in similar settings. In addition, mediation communications shall not be recorded in memoranda, case notes, reports, case plans, uniform progress reports, or similar documents.
(a) Exceptions. In the Cook County Child Protection mediation or facilitation process, any mediator or mediation participant may disclose:
(1) new allegations of abuse or neglect that are revealed during the mediation process;
(2) threats or statements made in mediation where failure to disclose is likely to result in serious or imminent harm to any person;
(3) communications that activate mandatory reporting obligations, in accordance with the provisions of the Abused and Neglected Child Reporting Act (325 ILCS 5/1-5/4), of any mediator, mediation party, or nonparty participant;
(4) mediation communications that are included in any Memorandum of Agreement; and
(5) as otherwise expressly provided by law.
(x) Mechanism for reporting to the Supreme Court on the mediation program. The Circuit Court of Cook County through the Office of the Chief Judge shall report to the Supreme Court the number of cases submitted to the Program pursuant to this rule. This report shall also contain the type and number of issues resolved through the program. Said report shall be submitted to the Supreme Court for the calendar year not later than the first day of March of the next calendar year.
[Amended, effective February 25, 2014.]