Mediation must be accessible to family litigants

By Nikki Carrion

The Illinois Supreme Court Rule 900 series governing child custody proceedings became effective in January 2007. These new rules were drafted by the Supreme Court’s Special Committee on Child Custody Issues.

According to committee comments regarding the purpose and scope of the series, “Rule 900 emphasizes the importance of child custody proceedings and highlights the purpose of the rules that follow, which is to ensure that child custody proceedings are expeditious, child-focused and fair to all parties.”

Rules 905 and 923(a) require that all parties in cases involving child custody or visitation issues must complete mandatory mediation prior to full litigation, unless those issues have been agreed to by the parties or the court determines that an impediment to mediation exists.

Additionally, Rule 905 mandates each judicial circuit to establish a program to provide mediation for cases involving the custody of a child or visitation issues.

While many family practitioners, including myself, agree that the 900 series has been successful in terms of the purpose and scope of the rules as identified by the committee, the issue of the series being an “unfunded mandate” still remains tenuous in many circuits.

Committee comments to Rule 905 identify impediments including “family violence, mental or cognitive impairment, alcohol abuse or chemical dependency, or other circumstances which may render mediation inappropriate or would unreasonably interfere with the mediation process.”

Significantly, financial hardship is not listed as an impediment. Thus, every litigant in custody and visitation cases must participate in mediation whether he or she can “afford” it.

It is the personal view of this author that every person should have the benefit of the mediation process, regardless of his or her ability to pay. For me and others, it is an “equal access” issue.

However, the reality exists that some litigants may not be able to afford the $500 to $1,000 retainers required by many private mediators.

What options do the judicial circuits have in these cases? Committee comments to Rule 905 address this issue on a circuit-by-circuit basis.

The committee references that Cook County provides a court-annexed mediation program that provides county-employed mediators at no cost to the parties. Not every circuit has the funding or resources for such a program, however.

Another option is for circuits to use judicial mediation, whereby judges in a particular circuit do the mediations for indigent litigants.

But judicial mediation may cause a strain on judicial resources or may not otherwise be administratively feasible for many small counties where perhaps there are only two or three judges covering all cases.

Finally, many circuits, including the one I practice in, require private mediators to mediate in a certain number of reduced-fee or pro bono cases per year.

Many private mediators do not mind doing some pro bono mediations each year, but even in large counties the number of cases with indigent litigants far exceed the number of private mediators.

This is particularly the case in smaller, rural counties where there may be only four or five family law practitioners. In these smaller counties, many family law practitioners are reluctant to mediate; it would cut down on business as they would be conflicted out of many cases.

Perhaps one option is for counties that cannot afford a court-annexed mediation program for all litigants to contract with private mediators to do the mediations in cases involving indigent litigants. This is similar to contracts with specially appointed public defenders or prosecutors.

Whatever the case may be, the judges, lawyers, and mediators should dialogue about what is feasible in each individual county or circuit. The goal is for indigent litigants to have the benefit of mediation in a way that is financially viable for private mediators.

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Alton attorney E. Nicole Carrion is a member of the ISBA Committee on Delivery of Legal Services and the Committee on Women and the Law.