19A.19 Child Protection Mediation Program
(i) Actions eligible for referral to mediation.
(a) Child Protection Cases. Pursuant to Supreme Court Rule 905(a), the Child Protection Mediation 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 mediation program focuses on issues pertaining to temporary or permanent custody and visitation. 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 child protection proceeding. However, cases shall be excused from mediation if the court determines that an impediment to mediation exists. In Child Protection cases, 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 Child Protection Mediation 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. However, cases shall be excused from mediation if the court determines that an impediment to mediation exists. 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 shall be made by Order to Mediation. Mediation sessions shall be held at a location provided by the Court. When a case is referred to mediation, 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, a return date before the Judge will also be set.
(iv) Conduct of the conferences.
(a) Who May Participate. The Court may order and the Child Protection Mediation Program anticipates that parents, guardians, foster parents, attorneys, guardians ad litem, social workers, and CASA volunteers will actively participate in the mediation 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 mediation session will be determined on a case-by-case basis. Following the initial mediation session, subsequent sessions may be scheduled which include various combinations of individuals who participated in the initial sessions, 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 mediation process and the discussion focused on the best interests of the child.
The mediators may conduct a child interview prior to the session to determine whether it is appropriate for the minor to participate in the mediation. The minor's guardian ad litem, attorney, and/or case manager may be present during the interview. The Child Protection Mediation Program shall make all final determinations as to the appropriateness of a minor's participation in the mediation process.
(b) The Mediation Process. The Child Protection Mediation 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 discussions facilitated by the mediators; and caucuses with select individuals in various combinations as needed.
(c) Use of Interpreters. Whenever possible, the mediation conferences 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.
(vi) Absence of party at conference and sanctions. Participation in all mediation 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 the mediation may be subject to court-ordered sanctions. Upon agreement of those present, a mediation session may proceed in the absence of an ordered individual if the mediators deem it appropriate.
(vii) Termination and report of mediation conference.
(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 mediation process if it is determined that the mediation cannot be conducted in a safe and balanced manner. The mediator shall also suspend or terminate the mediation process if it is determined that any party is unable to participate in an informed manner for any reason, including fear or intimidation.
(b) Mediation Report. A mediation report, indicating the number of sessions conducted pursuant to the Order to Mediation, and a continuance order shall be completed by the mediators at the end of each mediation session and submitted to the Court. The report shall also inform the Court if an ordered party failed to appear. Additionally, the report shall indicate whether the mediation parties reached full agreement, partial agreement, or no agreement. Any agreement reduced to writing shall be attached to the mediation report. Oral agreements will be recorded as no agreement for the purpose of the mediation report. If the mediation did not occur, the report shall inform the Court why it did not occur, whether an informal discussion was facilitated amongst the parties in attendance, and whether the case has been or will be reset for mediation. If, after the initial meeting, it was determined that the case was not suitable for mediation at the time, the report will so indicate.
(viii) Finalization of agreement. If agreement is reached by the mediation parties and they wish to reduce their agreement to writing, the mediators will assist the mediation parties 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 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 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 mediation pursuant to this rule. This report shall also contain the type and number of issues resolved through the mediation 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 May 6, 2008.]