Many domestic violence advocates believe that Mandatory Child Custody Mediation between a victim and the abuser is inappropriate and dangerous for a court to order. In such a Mediation case, a victim is ordered by the court to engage in the mediation with the abuser before the parties' custody or divorce case can be heard in court by a Judge.

In 1990, the Illinois Task Force on Gender Bias in the Courts Report stated that victims being forced by the court into Mandatory Mediation with the abuser in their custody cases was the "gender bias" most frequently complained about to this statewide Task Force.

The Illinois Marriage and Dissolution of Marriage Act contains two important provisions on mediation that can be used to affect domestic violence cases:

1. Section 404 (b). Conciliation; Mediation: "The court, upon good cause shown , may prohibit conciliation, mediation or other process that requires the parties to meet and confer without counsel."
2. Section 607.1 (c)4. Enforcement of visitation orders; visitation abuse: "After hearing all of the evidence, the court may order.counseling or mediation, except in cases where there is evidence of domestic violence."

The Illinois Marriage and Dissolution of Marriage Act also provides relevant factors that must be taken into account when issuing a child custody decision. This statute states that the judge must weigh the evidence of any "occurrence of ongoing abuse.whether directed against the child or directed against another person" when the judge decides who receives custody of a child [Section 602(a)(7)].

In addition, family violence is a crime in the State of Illinois, so specific consideration should be made for court cases that include violence in the family. Also, the Illinois Criminal Code upholds the seriousness of family violence by stating that the second domestic battery case against an abuser can be charged as a felony in Illinois, as well as the second charge of a violation of an Order of Protection.

In some areas of Illinois, Mandatory Child Custody Mediation in domestic violence cases exists and is widespread, but there has been little meaningful research in Illinois regarding issues of victim safety, delay of the cases in court, or cost to the victims. Many domestic violence advocates are concerned with protecting the victims of family violence in a legal culture that promotes mediation and in which there is a trend toward mandatory mediation in cases where there is ongoing violence between the parties.

The Model Code on Domestic and Family Violence requires Mediators to screen for domestic violence and recommends prohibiting mediation in certain cases and allowing for it in others, but only if there are victim safeguards in place. (National Council of Juvenile and Family Court Judges)

Obviously, Mediators need to receive extensive training in domestic violence if they choose to mediate cases between victims and abusers.

Mediation occurs when a neutral "Mediator" facilitates discussions between parties on opposite sides of a divorce or custody court case. The goal of Mediation is to reach a written settlement which is given to the Judge that will accommodate the needs of both parties without the need for litigation in court.

Some of the main ideas underlying Mediation are as follows:

• Mediation maintains that the parties should focus on future behavior of the parties, not the past behavior of any party .
• Mediation is defined as being prospectively rather than retrospectively centered, and is not concerned with determining rights and wrongs , but is focused on future conduct of the parties.
• Parties are told to focus on what areas should be decided on for the future, not remain focused on what one party has negatively alleged the other has done to them in the past .
• Mediation relies on an equality in bargaining power between the parties to be successful. Each party should participate equally in the search for a mutual agreement.

In this context, a "Mediator" is an individual to whom a referral of a custody dispute is made by the Judge after the case has been filed in court. The Mediator, who is to remain neutral throughout the process, is to assist the parties in an attempt to settle the custody and visitation case.

There are no licensing requirements for persons in Illinois to advertise themselves as a "Mediator", and there is no Illinois requirement that a "Mediator" have any specific skills or training on any topic.

The goal of Mediation is to have the parties enter into a written agreement detailing the rules of the relationship in the future without litigation in court. If the parties successfully have a mediation agreement to present to the Judge, then the Court does not have to listen to or weigh any evidence regarding the case. It is common that the attorney who represents a party in Mediation is excluded from the mediation sessions because most Mediators believe that an attorney's presence would upset the nature of the "private" mediation sessions between the parties.

In approximately nineteen Illinois counties, the court requires some contested family law cases (usually divorce and paternity cases involving custody of children) to be sent to a "Mediator" before the parties are allowed a court hearing to decide the matter. This is an attempt by the court to see if the parties can settle the case between themselves, prior to any contested hearing in front of the court. In some counties, a case is referred to Mandatory Mediation despite any party's objection to that referral. This includes an objection that is based on a party's request to have an immediate hearing in court on the disputed matters.

Each of these approximately 19 Mandatory Mediation programs in Illinois operates independently from the other Mediation programs. There can be a great variety in types of family cases that a court in one of these counties refer to their Mediation program than a different county's Mediation program, prior to allowing the case to be heard by the court.

Some counties have policies or practices in which all contested family law cases are usually sent to mediation, prior to any hearing regarding custody of children, even though a Judge has authority to "opt out" the parties' cases. Mediators in Cook County state that the majority of the cases that are sent from the court involve some domestic violence in the family, including cases with current Orders of Protection. Mediators believe their program has successfully helped families produce agreements in over 70% of the cases. These agreements were then sent to the court to be entered.

In some Mediation programs, Mediators state that after they identify violence in the family, they have been trained "to employ power-balance strategies to equalize negotiating power." Some Mediators state that after they complete the "power-balancing strategies" between the parties, they continue the sessions with the victim and the abuser.

Other Mediators agree with victim advocates that the power and control that the abuser can have over a victim cannot be balanced by the Mediator during a session enough to allow a victim to speak safely in her and her children's interests in front of the abuser.

Illinois counties that have some type of Mandatory Child Custody Mediation include:

Boone	Kendall	McLean
Bureau	Lake	Saline
Champaign	LaSalle	St. Clair
Cook	Lee	Williamson
DeKalb	Livingston	Winnebago
DuPage	McHenry	Woodford
Kane

This list may be incomplete.

Every county in Illinois that has Mediation has a different Mediation screening process. Screening in Cook County, for instance, happens prior to the first Mediation session through a written screening instrument. In many of the other counties, much of the Mediation screening is done at the first mandatory session with both parties present.

There is no Illinois law that tells a Judge or Mediator that the parties have to be asked any questions about violence in the family prior to Mediation. Any screening questions are up to each separate Mediation program.

Currently, some Mediation programs state that a Judge has the authority to "opt out" parties from the mandatory policy of referral to Mediation because of violence in the family. This means that family violence victims have a chance not to be forced to attend Mediation with the abuser in an attempt to reach a "settlement" with the abuser, prior to the custody dispute being heard by a Judge.

Several Mediation programs state that the Judge may excuse Mediation between the parties in their programs "for good cause shown." An Order of Protection within the family does not guarantee the victim that a "good cause exception" of Mediation will be made by a Judge in most counties, including Cook County.

The majority of Mediation programs in the State of Illinois do not have any policy that would exclude cases involving domestic violence from being sent to Mediation. A few of the county Mediation programs state that the court shall not force parties into Mandatory Mediation if there has been domestic violence in the family, i.e. Champaign County.

Judges in most Illinois Mediation programs commonly rely on notification from the individual Mediator to inform the court if that Mediator believes the parties' case cannot be mediated. The Judge relies on the Mediator's decision as to whether the case should continue in Mediation, even if the parties' case involves family violence disclosed in pending court pleadings in front of the Judge or involves orders of protection between family members known to the Judge, or disclosed through the Mediation screening process.

Cook County operates the only Mediation program in Illinois in which the Mediators are employees of the Circuit Court's Marriage and Family Counseling Service. There is no cost of mediation to the parties in Cook County. The rest of the Mediation programs in the state involve the court referring cases to Mediators in private practice or other private individuals whose names are placed on a "Mediator's list" for court use. In all other counties except Cook County, the parties are responsible for the payment of all Mediation fees. In some counties, if the parties are poor, the county can be asked to pay all or part of the Mediation fees. A few counties require the Mediator to waive the fees for a limited number of poor parties per year.

(These concerns have been voiced by the Illinois Family Violence Coordinating Council and others.)

• Is Mediation ever appropriate when family violence issues are present?

In 1990, the U.S. House of Representatives and the U.S. Senate both passed House Concurrent Resolution 172 that condemns Mandatory Mediation when there is spouse abuse. The Model Code on Domestic and Family Violence prepared by the National Council of Juvenile and Family Court Judges presumes there will be no Mediation when an Order of Protection is in effect and no Mediation when allegations of family violence are present unless certain restrictive conditions are met.

Concern for safety and the protection of victims of family violence is a fundamental guideline, particularly since evidence indicates that domestic violence escalates after the break-up of a marriage, or relationship

• Whether Mediation is mandatory or there is a method for exempting victims of family violence, the Court must assume that many victims will not identify themselves, and screening protocols, if they do exist, may not be successful in identifying those victims.

Both research and anecdotal evidence state that victims of domestic violence are frequently unwilling to tell the screener, a mediator, or even her own attorney.

Therefore, there should be a series of "opt-out" junctures in the mediation process to provide adequate safeguards and maximize safety. An opt-out from mediation should be triggered by: a) the court; b) the mediation screener; c) the mediator; or d) a party to the case.

Any family Mediation process must be concerned throughout with safety of the victim and children, with education of Mediators regarding domestic violence, and with the structure that Mediation not delay any safety concerns of the victim and children from being handled by the court.

Every Mandatory Mediation program should develop a written local court rule detailing the court's policy on all rules, practices, and other policies governing mediation in that area.

• How does the Court's mediation process identify victims of family violence? Each step of the process must address the training, qualification, and appointment of Mediators and the adoption of screening protocols.

Mediators who have not been trained in the dynamics of family violence may not be able to identify victims even with excellent screening protocols. It is recommended that Mediators be trained by local domestic violence experts in both the dynamics of family violence and safety planning, and be certified in identifying substance and alcohol abuse and mental illness. Mediators should meet minimum standards such as educational standards; and completion of a recognized training program in mediation including training regarding pertinent parts of the Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act. In 1984 the Family Law Section Council of the Illinois State Bar Association proposed minimum standards for Mediators in the Illinois which have not be adopted.

Excellent screening protocols for domestic violence are essential . For example, screening protocols should require an interview with each individual in separate sessions. This is part of the Illinois Study Committee's Recommendation. Screening protocols must ask specific behavioral-oriented questions rather than general conclusive questions like: "Are you a victim of domestic violence?" It is the responsibility of the screening official to screen for domestic violence during the intake procedure and, if it is identified, to terminate Mediation before it actually begins. Mediators have an ethical and professional duty to screen for family violence (and to screen for substance and alcohol abuse) and to not begin or to stop Mediation when domestic violence has occurred. It should be the absolute right of the party to reject or to terminate Mediation because of the existence of domestic violence.

• When a county court system provides an "opt-out" mechanism from Mediation for the victim of family violence, this choice or "opt-out" must be confidential. The court should issue and enforce court rules promoting confidentiality.

Confidentiality in this framework means that the identity of the party who opts out will not be conveyed to the Judge hearing the case. Nor will the reason for opting out be identified. Similarly, parties who terminate mediation after it has begun should not be identified.

Trial court referrals to mediation are intimidating to the parties. The victim who wants to opt out will not feel comfortable doing so if identifying information is conveyed to the trial Judge. As Judges have accepted Mediation with ever-increasing enthusiasm, the perception has developed that this is the court's preferred method of resolving custody (visitation, etc.). The already fearful victim will be reluctant to reject (or terminate) the "preferred" method if the Judge hearing the case will immediately be told of the identity of the party or the reason(s) for termination.

• The existence of a Mediation program (with or without an opt-out provision) must not delay a court decision on the parties' case in court.

Abusers may use delay as a tactic to control the victim. Some Mediation programs require completion of Mediation or a certain number of sessions before a court hearing may be scheduled. One recommendation is that cases that are sent to Mediation should have completed the Mediation process within a three-month period, so that the cases can then be referred back to the court in a timely manner. The court would then either receive a Mediation agreement or set the case for hearing at that time. This would keep cases that are sent to Mediation from remaining in Mediation for a number of months or years, precluding the parties from having access to the court. If the parties incur the cost of Mediation, the length of Mediation when it extends over numerous months is a concern to victims.

If a victim opts out or terminates Mediation, the case should then be given timely access to the court. If most custody cases are sent to Mediation, then there is a risk that cases which never go to Mediation or fail to stay in Mediation, will not be given access to the court any sooner than cases being Mediated.

• The existence of a Mediation program that involves a victim of domestic violence requires the development of a comprehensive plan to respond to violence or the threat of violence to the victim in any cases subject to Mediation.

Personal safety should be written to take into account the physical surroundings in which the screening and Mediation sessions will occur, access to prompt law enforcement assistance, the availability of community resources, victim advocate services to help reduce the risk of harm, and other protective measures that are reasonably necessary to safeguard a party in Mediation. Personal safety protocols should be implemented at the direction of the Mediator, screening official, or Judge upon request of a party.

Evidence of prior domestic violence should be sufficient to implement safety protocols. Personal safety protocols should provide that during Mediation, or at the termination of Mediation, an Order of Protection will be sought and issued if needed to protect a party (and children) through all judicial proceedings.

• Mediators are not counselors, nor are they evaluators.

Mediators should not be called upon or expected to testify or make recommendations to the court, regardless of whether they are qualified to testify or make recommendations, because it is not their role as Mediator to report on what the parties said in Mediation.

• Communication within the court system is vital to protect victims of family violence.

For example, if your county or circuit concludes that prior or concurrent domestic violence arrests, prior Orders of Protection and existing Orders of Protection absolutely preclude Mediation, it is important that each Judge (courtroom) in the jurisdiction be made aware of the existence of those Orders of Protection. A victim who properly refuses Mediation services because of an existing Order of Protection may be disadvantaged unless that Judge, court clerk, or scheduling entity is officially notified the Order of Protection was entered.

• Costs to the parties associated with any Mediation system in which domestic violence victims are not opted out is a serious concern.

It is recommended that if a domestic violence victim is not opted out of Mandatory Mediation and the victim is not financially able to pay the costs, the victim should receive a financial hardship waiver or reduction. (Financial hardship waiver or reduction, pursuant to court rules regarding indigent people.)

• Mediation in family law cases as a method of alternative dispute resolution should be thoroughly studied and evaluated as to the issues of safety, cost, delay, outcomes, and degree of satisfaction over time (including the impact on children).

Local Family Violence Coordinating Councils are urged to create an "oversight committee" on the consequences of any Mandatory Mediation referrals of victims cases. This would provide periodic feedback to the Chief Judge regarding how local practice is affecting victims of domestic violence. Local family violence providers, judges, and law enforcement and health care personnel could be members of such a committee.

Contact the Legal Institute if you want more information on the following articles:

• 1999 Curriculum for Mediators (18 hour training program)
• 1999 Curriculum for Judges/Administrators (3 hour training program)Both are from the American Bar Association Center on Center and the Law 740 15th St. NW Washington, DC 20005. These curriculum address mediation program screening for domestic violence, and the appropriateness and types of mediation if DV is present.
• The Culture of Battering and The Role of Mediation in Domestic Violence Cases, Fischer, Karla, Neil Vidmar, and Rene Ellis, SMU Law Review , May 1993
• Decriminalization of Violence in the Home: Mediation in Wife Battering Cases, Law and Inequality, 493 - 519 Vol. 2:493, 1984
• A Mediator's Guide to Domestic Abuse, National Center on Women and Family Law Inc., 1989
• Mediation: A Guide for Advocates and Attorneys Representing Battered Women, National Center on Women and Family Law