Annette Fernholz on Court’s list of approved mediators.

The Circuit Court of Cook County Domestic Relations Division has expanded its mediation rules. There has been a long-standing mandatory mediation rule for parents with child custody, visitation and removal issues. Now there are explicit rules regarding discretionary mediation which can include financial issues such as property, maintenance and child support, discovery issues and other contested issues that are not custody-related.

As was previously the norm, domestic cases involving child custody, visitation or modification of custody or parenting time and removal of a child from the state can still be referred to the Family Mediation Services offered through the county for no fee. However, now private mediators may be appointed by the court or agreed to by the parties to delve into issues beyond custody and visitation. The costs of this mediation will vary depending on the mediator selected. If the court appoints a private mediator, the court will enforce payment of the mediator’s fee.

Certain non-confidential documents may be required before the commencement of mediation. Documents such as summary of the facts of the case, issues in dispute, financial disclosure statements, proofs of income and other documents such as school reports and business valuations may be required by the mediator.

Unlike the mediation offered by Cook County’s Family Mediation Services, private mediation may be attended by attorneys and other individuals such as therapists, financial analysts and even the children if the parties and the mediator agree.

The role of the mediator is not to counsel or advocate for either party or position, he or she is in a neutral role. The mediation process is of a confidential nature and the settlement negotiations are not to be introduced into court by document or testimony.

If the parties reach agreement on any issues, the mediator will draft a written memorandum of understanding to be signed by both of the parties. This is not the document that will be entered by the court; however, it is the document used to draft the settlement agreement. In keeping with Illinois case law, a settlement agreement on child-related issues is not binding until it has been approved by the court. Conversely, settlement agreements reached in mediation on issues including division of property and awards of maintenance are binding on the parties and the court if: (a) the agreement is in writing, signed by the parties and the court does not find the agreement unconscionable; or (b) the agreement is oral, has been stated on the record and the court does not find it unconscionable.

Annette M. Fernholz is one of 50 mediators approved by the Circuit Court of Cook County, Domestic Relations Division, to provide court-certified mediation for custody–related and financial-related mediation.