Child Custody Disputes: Is Mediation Mandatory?

In short, yes.  In disputes over custody, visitation, and removal (moving a child outside the state), mediation is required before the court will make any dispositive decision regarding the parenting of the child(ren) at issue.  This rule applies to cases where parents are divorcing and where parents were never married.  Illinois Supreme Court Rule 905 provides that each judicial circuit shall establish a program to provide mediation for cases involving the custody, removal, and visitation of a child.  Cook County’s mediation program requirement is memorialized in Rule 13.4(e) of the Cook County Circuit Court Rules.

However, there are a few exceptions.  First, while not technically an exception, there is the option to choose your own mediator.  You and your spouse/co-parent may decide on a private mediator, but keep in mind that you will usually have to pay out-of-pocket for a private mediator’s services.  If you and your spouse/co-parent cannot come to an agreement on a private mediator, or you cannot afford one, Family Mediation Services of the Circuit Court of Cook County offers mediation at no charge. (13.4(e)(i)(b)(8)).

The second exception is if an issue in your case creates an impediment to mediation.  An impediment, as defined by Cook County Circuit Court Rule 13.4(e)(i)(b)(3), is a circumstance which may render mediation inappropriate or unreasonably interfere with the mediation process.  Impediments include, but are not limited to, domestic violence, mental impairment of one or both parties, and substance abuse.  Keep in mind that domestic violence is a wide scope of behavior that includes harassment and intimidation, in addition to physical and mental cruelty.  If your spouse/co-parent is harassing or abusing you, or has in the past, make sure to inform your attorney or the judge before you are ordered into mediation.

If no impediment exists, you should approach mediation with an open mind.  Decisions made by the parties to an action are usually more likely to be adhered to than judgments that come down from the bench.  Plus, if you reach an agreement with your spouse/co-parent, you will probably save yourself from running up legal fees in the future.   By Sarah Zigulich

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