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  PART 14.00  Matrimonial Proceedings


14.00 MATRIMONIAL PROCEEDINGS

For purposes of this rule, matrimonial cases are defined as any proceedings for an order or judgment relating to dissolution of marriage, legal separation, or declaration of invalidity of marriage, including related proceedings concerning such matters as maintenance, child custody, and/or support.

(Adopted 10/1991) 

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14.01 SCHEDULING PROCEEDINGS

a.  No matter shall be set for evidentiary hearing except by the assigned judge upon notice and motion of a party. Contested motions and uncontested matters shall be heard pursuant to General Order 4.03.

b.  (1)   Winnebago County

Uncontested motions may be scheduled by a telephone call (987-2510) to the circuit clerk's office, general division before 3:00 P.M. the day preceding the hearing. (See General Order 3.02) The following information must be given to the clerk of the circuit court when scheduling such motions 

1. Number of case;
2. Parties;
3. Type of motion; and 
4. Attorneys, both movant and respondent.

    (2)   Boone County

Contested and uncontested motions may be scheduled by a telephone call (815-544-0371) to the circuit clerk's office. However, no motion will be placed on the trial judge's hearing calendar by the circuit clerk unless said motion and notice of motion has been received by the clerk before 3:00 P.M. two (2) days preceding the hearing date.

c.  With the consent of the parties, an expedited trial on financial issues, or any other issues, may be scheduled with the approval of the court. An expedited trial may be scheduled after the parties have completed discovery and have filed with the court five (5) days prior to the expedited trial date:

1. A pretrial memorandum - Appendix P;    
2. Financial affidavits; and
3. Compilations of exhibits and summary of arguments Appendix T Appendix T

The following shall apply to all expedited trials:

1. It shall be conducted before the bench with the parties present unless they have waived their appearance.
2. Testimony of the parties will not be allowed except with permission of the court.
3. Comments of counsel and/or parties will be permitted as deemed necessary by the court.
4. Comments of counsel and/or parties will be permitted as deemed necessary by the court.
5. Except for child-related and orders of protection matters, expedited trials will be given priority for scheduling of hearings.
 
(Revised 7/22/05)
   
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14.02 FINANCIAL AFFIDAVITS

A. Pursuant to 750 ILCS 5/501, a single standardized financial affidavit, as determined by the Illinois Supreme Court, shall be used statewide.  This form and instructions on how to complete a financial affidavit are available on the Illinois Supreme Court website - http://www.illinoiscourts.gov/Forms/approved/divorce/financial_affidavit.asp.  Each party shall file and serve on the other party his or her Financial Affidavit prior to any temporary financial hearing pursuant to Illinois Supreme Court Rule.       

B. Because they are inherently of a personal nature and create an enhanced risk of identity theft, financial affidavits and any supporting documentation shall be accepted by the Office of the Circuit Clerk and be filed as impounded documents. As an impounded document, the financial affidavit shall not be available for public access but shall be available to the court, the appellate court, parties and their attorneys, and others directed by the court.       

(Amended 9/4/2018)       

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14.025 STATEMENTS OF ASSETS AND LIABILITIES

In all contested proceedings concerning division of property and/or modification of any orders relating thereto, each party shall serve on the other, pursuant to Supreme Court Rules or these rules, a Statement of Assets and Liabilities, substantially as set forth in Appendix V Appendix V, within 90 days of the filing of the original pleading.
The requirements of this rule may be waived by agreement of the court and all parties of record.

(Amended 7/19/99)

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14.03 PRE-TRIAL MEMORANDUM

Unless otherwise ordered by the court, before a petition for dissolution of marriage, legal separation, or declaration of invalidity proceeds to a pre-trial conference or contested hearing on all issues, a pre-trial conference or contested hearing on remaining issues, or a post-judgment petition proceeds to a pre-trial conference or contested hearing on issues, each party must complete and sign a Pre-Trial Memorandum, as set forth in Appendix P.  Unless otherwise ordered by the court, the Pre-Trial Memorandum shall be presented to the court five (5) days prior to any pre-trial conference or hearing on the merits.  A pre-trial memorandum is not required for temporary relief or in those cases in which no contested grounds or issues exist.

(Amended 9/4/2018)        

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14.04 TRANSCRIPTS

In any proceedings for entry of a judgment for dissolution of marriage, legal separation, or declaration of invalidity of marriage, the testimony shall be recorded. The report of proceedings for uncontested grounds shall not be filed unless requested by a party or ordered by the court. In uncontested or default proceedings which includes grounds and remaining issues or only remaining issues, the said reports shall be transcribed. Payment of said fee shall be the responsibility of the attorney representing the party seeking dissolution. Within thirty (30) days of the date of the uncontested or default hearing the transcript of the proceeding shall be prepared unless waived by order of court and filed with the clerk of the court by the assigned court reporter.
(Revised 7/1999)

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14.05 NOTICE OF PROCEEDINGS

Notice of default for entry of judgment for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be given to the defaulting party not less than seven (7) days and not more than thirty (30) days in advance of such default hearing, unless excused by the court for good cause shown.

(Revised 7/1999) 

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14.06 ATTORNEY QUALIFICATIONS IN CHILD CUSTODY MATTERS

A.  The 17th Judicial circuit shall maintain a list of approved attorneys qualified to be appointed in child custody and visitation matters covered under Section IX of the Supreme court rules as guardians ad litem, child representatives, or attorneys for children pursuant to court order. Appendix JJ Appendix JJ

B.  In order to qualify for the approved list, each applicant for the list shall meet the following minimum requirements:

  1. Each  attorney shall be licensed and in good standing with the Illinois Supreme Court.
  2. Each attorney shall  have attended the education program created by and/or presented by an approved MCLE provider consisting of a minimum of ten hours of continuing legal education credit within the two years prior to the date the attorney qualifies to be appointed.
  3. To remain on the approved list, each attorney shall attend continuing legal education courses consisting of at least ten hours every two year period and submit verification of attendance to the Office of the Chief Circuit Judge at the time of attendance or upon request.  The ten hours should include courses in child development; ethics in child custody cases; relevant substantive law in custody, guardianship and visitation issues; domestic violence; family dynamics including substance abuse and mental health issues; and education on the roles and responsibilities of guardians ad litem, child representatives, and attorneys for children.  Attendance at programs sponsored by this circuit may be included as a portion of this continuing education requirement.
  4. Each attorney must complete the GAL/Child Representative Information Sheet provided by this circuit and are turn it with a statement or other verification of attendance at continuing education.   Appendix II.
  5. Each attorney must adhere to the minimum duties and responsibilities of attorneys for minor children as delineated in Supreme Court Rule 907.

C.  Each attorney placed on the approved list and appointed shall be paid by the parties to the litigation as ordered by the judge handling the file or as agreed between the litigants.  The costs for the appointed attorneys shall be paid as ordered and the court may enforce the orders and judgments as in other proceedings, including the imposition of sanctions.

D.  In the event In the event the court deems it is in the best interests of the child or children to have  an attorney appointed in a proceeding under Section IX of the Supreme Court Rules but finds that the parties are both indigent, the court may appoint an attorney from the approved list to serve pro bono.

E.  The Presiding Judge of the Family Division shall maintain the list of the approved attorneys and the judges assigned to hear custody and visitation matters covered under Section IX of the Supreme Court Rules shall rotate the appointment of pro bono representations.

F.  Each attorney on the approved list for the Judicial Circuit shall only be required to accept one pro bono appointment each calendar year.

G.  The Presiding Judge of the Family Division of this circuit maintains the authority to remove any attorney based upon the failure to meet the listed qualifications or for good cause, including the failure of any appointed attorney to perform as provided in Supreme Court Rule 906 and 907.

(Amended 4/30/07)

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14.075 CHILD SUPPORT DATA SHEET REQUIRED

Any party filing a petition initiating a Dissolution of Marriage (D), Order of Protection (OP) or Family (F) case in which support is requested, or in a petition to modify an existing order for support in which child support is payable though the Circuit Clerk, and any party filing a response thereto, shall properly complete a "CHILD SUPPORT DATA SHEET," in substantially the same form as provided in Appendix W of the Local Rules, and shall file such Data Sheet with the Circuit Clerk at the time of filing said petition.

The Circuit Clerk shall provide a copy of this Local Rule, together with the "CHILD SUPPORT DATA SHEET," contained in Appendix W Appendix W of the Local Rules to the attorneys of record and pro se litigants, in pending Dissolution of Marriage (D), Order of Protection (OP), and Family (F) cases.

In all pending Dissolution of Marriage (D), Order of Protection (OP), and Family (F) cases in which child support has been, or will be, requested, a properly completed "CHILD SUPPORT DATA SHEET" is to be filed with the Circuit Clerk by each attorney of record or pro se party in those cases within fifteen (15) days after receiving a copy of this Local Rule.

(Adopted 11/9/99)

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14.08  MEDIATION PROGRAM FOR CHILD CUSTODY, VISITATION AND REMOVAL

I.  RULES

RULE 1.     DEFINITIONS
RULE 2.     MEDIATION MANDATORY
RULE 3.     REFERRAL ASSIGNMENT PROCEDURE
RULE 4.     MEDIATION PROCESS
RULE 5.     QUALIFICATIONS OF MEDIATORS
RULE 6.     APPLICATION OF SAFEGUARDS IN CASE OF IMPEDIMENT
RULE 7.     CONFIDENTIALITY
RULE 8.     ATTENDANCE AND TERMINATION OF MEDIATION
RULE 9.     ENTRY OF JUDGMENT OR ORDER

II.      APPENDICES

Y.     ORDER APPOINTING MEDIATOR
Z.      SCREENING PROTOCOLS FOR MEDIATORS
AA.   CONFIDENTIALITY AGREEMENT
BB.   MEDIATOR’S REPORT
CC.   MEDIATOR’S STATISTICAL REPORT
MM.   EVALUATION FOR PARTIES

      

RULE 1.  DEFINITIONS

 A.  Mediation.  When the word “mediation” is used herein, it means a cooperative process for resolving conflict with the assistance of a trained court-appointed, neutral third party, whose role is to facilitate communication, to help define issues, and to assist the parties in identifying and negotiating fair solutions that are mutually agreeable.  Fundamental to the mediation process, described herein, are principles of safety, self determination, procedural informality, privacy, confidentiality, and full disclosure of relevant information between the parties.
(See Appendix Y  for the Court-Approved Order form).

 B.  Impediment.  When the word “impediment” is used herein, it means any condition, including but not limited to domestic violence or intimidation, alcohol abuse or chemical dependency, mental or cognitive impairment or any other circumstance which may render mediation inappropriate or hinder the ability of any party to negotiate safely, competently, and in good faith.  The identification of forms of impediment is designed not to require treatment, but to insure that only parties having a present, undiminished ability to negotiate are directed by court order to mediate.  Mediation is based on a full disclosure of all facts related to the disputes so that a fair and equitable agreement can be achieved by the parties.

C. Removal. When the word "removal" is used herein, it means an action involving the removal of a minor child  pursuant to section 609 of the Illinois Marriage and Dissolution Act.

RULE 2.  MEDIATION MANDATORY

 A.  Matters Subject to Mediation.   Dissolution of marriage, paternity or any other types involving disputed issues with respect to the custody of a child, visitation or removal of a child (whether or not the parties have been married) shall be subject to mediation under this rule.  The parties may not proceed to a judicial hearing on contested issues except temporary relief arising in that case without leave of court, or until the mediation process has been concluded and its outcome has been reported to the court. 
(See Appendix Y for the Court-Approved Order form).

B.  Prerequisite to Mediation.  The parties referred to mediation by the court shall complete the parent education program prior to starting mediation or as soon after starting mediation as the parent education program’s schedule allows.

C.  Commencement of Mediation.  The mediation process shall commence as provided by Supreme Court Rule.  In no event shall mediation occur before a case has been screened for eligibility pursuant to safety protocols for mediators. (See Appendix Z).  The designated family division judge shall be advised by counsel and/or the parties concerning:

1. Impediment of the parties as defined in Rule 1(B).   Reason to believe that impediment exists should  result in referrals that may address the impediment(s) to mediation.
2. Other circumstances exist which would unreasonably interfere with mediation.
3. Mediation shall not be required if the court determines, upon motion of a party, that a case is ineligible for mediation.  Said motion shall be supported by affidavit setting forth specific facts detailing why mediation would be inappropriate.

 D.  Discovery.  Discovery may continue throughout the mediation.

RULE 3.  REFERRAL ASSIGNMENT PROCEDURE

A.  Upon the court’s order for the parties to participate in mediation, a mediator may be selected by agreement of the parties from the list of qualified mediators maintained by the presiding judge of the Family Relations Division.  Absent an agreement, the trial judge shall select the mediator and assign the mediator a 45-day status date on the issue of progress of the mediation.  The mediators shall be compensated by the parties at the rate agreed to by the parties and the mediator. In cases where a litigant can only communicate in a language other than English, the court shall make a good-faith effort to appoint a mediator who speaks the language of the litigant.

1. The court shall designate in its order what percentage of the mediation fee should be paid by the party and/or whether the case should be considered a reduced fee or indigency case.

2. The attorneys shall encourage the parties to mediate in good faith.  The parties shall participate in mediation in good faith.

3. On or before the status date, for parties who are participating in mediation, the mediator shall submit a report to the court and the parties’ legal counsel, which shall include the information required by Rule 9.  (See Appendix Form BB for the Mediator's Report form).          

4.  The parties shall contact the mediator within two (2) days after the referral order is signed for the purpose of setting an appointment.

B.  Conflict of Interest

 1. If the mediator appointed has or had any possible conflict of interest, including but not limited, to a current or previous therapeutic, personal or economic relationship with mother, father, child, sibling, step-parent, grandparent, household member, counsel or anyone else directly involved in the case, he or she shall decline the appointment or disclose that relationship to the attorneys and may be removed for that reason.  If there is a conflict, the parties may select or the court shall appoint another mediator.

2.  A mediator who is a mental health professional shall not provide counseling or therapy to the parties or their children during or after the mediation.  An attorney-mediator may not represent either party in any matter during the mediation process or in a dispute between the parties after the mediation process. 

C.  Ethical Conduct:  Inclusion of a mediator in the 17th Judicial Circuit approved mediators list indicates explicit agreement by that mediator to maintain high standards of ethical practice.  Failure to comply may result in removal of the mediator’s name from the approved list.

RULE 4.  MEDIATION PROCESS

A.  Commencement:  At or prior to the initial session, the mediator shall:

1. Determine the issues to be mediated;

2. Explain that no legal advice, therapy or counseling will be provided;

3. Disclose the nature and extent of any existing relationships with the parties or their attorneys and any personal, financial, or other interests that could result in bias or conflict of interest on the part of the mediator;

4. Inform each party of his/her right to obtain independent legal counsel;

5. Inform the parties that:

a. mediation can be suspended or terminated at the request of either party after three (3) hours of mediation, or in the discretion of the mediator as outlined in Rule 4 (A)(5)(b);

b. the mediator may suspend or terminate the mediation if an impediment exists, if either party is acting in bad faith or appears not to understand the negotiation, the prospects of achieving a responsible agreement appear unlikely, or if the needs and interests of the minor children are not being considered.  In the event of a suspension or termination, the mediator may suggest a referral for outside professional services;

6. Explain that the mediation process is confidential as outlined in Rule 7;

7.  Confirm the parties’ understanding regarding the fee for services and any reduced fee arrangements for eligible parties with financial hardship;

8.  Reach an understanding with the parties as to whether the mediator may communicate with either party or their legal counsel or with other persons to discuss the issues in mediation in the absence of the parties.  Any separate communication which does occur shall be disclosed to the parties at the first opportunity;

9.  Advise each party that legal counsel, advocates, or other persons may be present only if both parties and the mediator agree in advance.  Such individuals may be available for consultation for each participant while mediation is in progress; and

10.  Advise each party that children may be allowed to participate in mediation so long as all parties and the mediator consent to said participation, in writing, and that each parent or the child’s representative or guardian ad litem, if applicable, has the right to withhold consent.

B.  Reporting Risk of Bodily Harm: While mediation is in progress, the mediator may report to an appropriate law enforcement agency any information revealed in mediation necessary to prevent an individual from committing an act that is likely to result in imminent, serious bodily harm to another.  When the identity of an endangered person is known to the mediator, the mediator may warn that person and his attorney of the threat of harm; such notification shall not be considered a breach of confidentiality mandated by this rule.

RULE 5.  QUALIFICATIONS OF MEDIATORS             

A.  Requirements: Mediators must meet all of the following requirements:

1. Formal Education: Possess a degree in law or a master’s or other advanced degree in a field that includes the study of psychiatry, psychology, social work, human development, family counseling or other behavioral science substantially related to marriage and family interpersonal relationships or a related field or other degree program approved by the Chief Judge or his/her designee. If engaged in a licensed discipline, the mediator must maintain said license in full force and effect.

2.  Training: Complete a specialized training in family mediation consisting of a circuit- approved course of study or certification, to consist of at least 40 hours in the following areas:

a. Conflict resolution

b. Psychological issues in separation, dissolution and family dynamic;

c. Issues and needs of children in dissolution;

d. Mediation process and technique; and

e. Screening for and addressing domestic violence, child abuse, substance abuse and mental illness.

3.  Insurance: Court-approved  mediators must secure and maintain professional liability insurance which covers the mediation process and provide evidence of insurance to the Chief Judge annually.

B.  Continuing Education: Approved mediators are required to complete ten (10) hours of circuit-approved continuing education every two (2) years of which two (2) hours must cover domestic violence issues and provide evidence of completion to the Chief /Presiding Judge every two (2) years.

C.  Establishment of List: The 17th Judicial Circuit shall establish a list of court approved mediators.  All applicants for inclusion on the list shall possess the minimum qualifications set out in this Rule.  The court, in its discretion, may require any biographical or other relevant information from an applicant in order to determine whether the applicant should be included on the list.  For good cause shown, the court reserves the right to reject the application of any person who applies and to remove any mediator from the list.  Inclusion on the list by the court shall not be considered a warranty that such mediator can successfully mediate any specific dispute.

D.  Denial/Removal from List: An applicant denied inclusion on or removed from the court approved list may appeal the decision in writing within ten (10) days to the presiding judge of the family division.  The presiding judge of the family division shall decide the appeal after an opportunity for the applicant or mediator to be heard.

E.  Pro Bono Requirement: Each circuit-approved mediator shall agree to mediate reduced fee or pro bono cases as assigned by the Court.

RULE 6.  APPLICATION OF SAFEGUARDS IN CASE OF IMPEDIMENT

A.  Duty to Assess: While mediation is in progress, the mediator shall assess continuously whether the parties manifest any impediments affecting their ability to mediate safely, competently and in good faith.

B.  Safety: If an impediment affecting safety arises during the course of mediation, the mediator shall adjourn the session to confer separately with the parties, may implement appropriate referrals to community service providers, shall advise the parties of their right to terminate and either shall:

1. Terminate mediation when circumstances indicate that protective measures are inadequate to maintain safety; or

2. Proceed with mediation after consulting separately with each party to ascertain whether mediation in any format should continue.

C.  Competency or Good Faith: If an impediment affecting competency or good faith, but not safety, arises during the course of mediation, the mediator may make any appropriate referrals to community service providers and either:

1. Suspend mediation when there is a reasonable likelihood the impaired condition of an affected party is only temporary; or

2.  Terminate mediation when circumstances indicate an affected party’s ability to negotiate cannot be adequately restored.

D.  Effect of Termination: No mediation terminated shall proceed further unless ordered by the court upon motion of a party.  In the absence of such an order, the case shall be returned to the docket for adjudication in the manner prescribed by law.

RULE 7.  CONFIDENTIALITY

A.  Privacy of Sessions: Mediation sessions shall be private.  Except as otherwise provided in Rule 4(A)(9), the mediator shall have authority to exclude all persons other than the parties from sessions at which negotiations are to occur.

B.  Confidentiality: Except as otherwise provided by law, all written and verbal communications made in a mediation session conducted pursuant to these rules are confidential and may not be disclosed by the mediator or any other participant or observer of the mediation, except that the parties may report these communications to their attorneys or counselors.  Prior to the commencement of mediation, all participants in the mediation shall sign the confidentiality agreement prescribed by these rules.  (See Appendix AA).      

C.  Limitation of Disclosure: 

1. Admissions, representations, statements and other communications made, or disclosed in confidence by any participant in the course of mediation session shall not be admissible as evidence in any court proceeding.  Except as identified herein, a mediator may not be called as a witness in any proceeding by any party or by the court to testify regarding matters disclosed in a mediation session, nor may a party be compelled to testify regarding matters disclosed during a mediation session as to privileged communications.  These restrictions shall not prohibit any person from obtaining the same information independent of the mediation, or from discovery conducted pursuant to law or court rule.

2.  Exceptions:  Admissions, representations, statements and other communications are not confidential if:

a. all parties consent in writing to the disclosure; or

b. the communication reveals either an act of violence committed against another during mediation, or an intent to commit an act that may result in bodily harm to another; or

c the communication reveals evidence of abuse or neglect of a child; or

d. non-identifying information is made available for research or evaluation purposes approved by the court; or

e. the communication is probative evidence in a pending action alleging negligence or willful misconduct of the mediator.

        

RULE 8.  ATTENDANCE AND TERMINATION OF MEDIATION

A.  Attendance:  The parties shall attend the mediation session(s) and shall attend a minimum of three (3) hours of mediation.  Further participation may be extended by order of court or agreement of the parties.  Mediation may be terminated or suspended prior to completion of the three (3) hours upon resolution of all mediated issues.

B.  Termination or Suspension:  The mediation may be terminated or suspended at the option of the mediator or the court.

C.  Notice to Court:  The mediator shall immediately advise the court in writing if he or she suspends or terminates mediation or in the event that either or both parties fail to comply with the terms of this Rule.

D.  Sanctions for Failure to Appear: If a party fails to appear without good cause at a previously  agreed upon mediation conference or a mediation conference ordered by the court, the court upon motion may impose sanctions, including an award of mediator and attorney fees and other costs, against the party failing to appear.

E.  Termination with Agreement: When agreements or partial agreements are reached by the parties during mediation, the mediator shall provide a written account of the agreements to the parties and their attorneys (if any), but the mediator shall not provide this written account to the court.  The mediator shall advise each party to obtain legal assistance in drafting or reviewing any final agreements.  The mediator shall advise the parties that agreements reached during mediation will not be legally binding until they are reviewed by the court and signed by the judge.

F.  Termination Without an Agreement: Upon termination without agreement, the mediator shall file with the court a final mediator report stating that the mediation has concluded without disclosing any reasons for the parties’ failure to reach an agreement.

G.  Reporting Procedures

1. Mediator’s Report:  The mediator shall prepare a Mediator’s Report on the prescribed form within ten (10) days of the termination of the last mediation session.  These reports will be filed with the circuit clerk.  (See Appendix BB).  

2. Mediator's Statistical Report: The mediator shall prepare a statistical report for each case on the form provided by the Administrative Office of the Illinois Courts and submit the same at least quarterly with the trial court administrator.   Mediator's Statistical Reports shall remain confidential and shall only be utilized for administrative and statistical purposes.  (See Appendix CC).   

3. Evaluation for Parties: Parties on each case shall complete an evaluation of the mediation process on the form prescribed by the Administrative Office of the Illinois Courts and submit the same to the court.  Attorney for the parties and the mediator shall encourage parties to complete this evaluation form.  Parties Evaluation Reports shall remain confidential and shall only be utilized for administrative and statistical purposes.  (See Appendix MM).         

 4.  Reports to the Supreme Court.  The trial court administrator or his/her designee shall provide for the maintenance of mediation reports and statistical records as required under Supreme Court Rule 905(c). Quarterly Reports shall be provided to the Administrative Office of the Illinois Courts on a quarterly basis or at such other interval as may be directed.

H.  Appointment of Child Representative/Guardian ad litem: If the mediator has concerns for the welfare or safety of the minor child(ren) or feels that it is in the best interests of the minor, the mediator shall recommend to the court in the Mediator’s Report that a child representative or guardian ad litem be appointed for the minor(s).

RULE 9.  ENTRY OF JUDGMENT OR ORDER

A.  Presentation of Order: Each mediated agreement shall be presented by the parties or their attorneys (if any) to the court within thirty (30) following the filing of the final Mediator’s Report.

B.  Approval by Court: The court shall examine the parties as to the content and intent of the agreement and shall reject the agreement if any of its provisions are found by the court to be unconscionable or contrary to the best interests of a minor child.  Unless the agreement is rejected, the court shall enter an appropriate judgment or order stating its findings and shall incorporate, either explicitly or by reference, the agreement so the terms of such agreement are also the terms of the judgment or order.

(Amended 8/20/2014)

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14.09 FINANCIAL MEDIATION PROGRAM (PILOT PROGRAM)

Whereas the Court finds that the 17th Judicial Circuit Family Mediation Program for custody and child visitation issues as codified in Local Rule 14.08 is beneficial in assisting parties to settle their custody and visitation differences through mediation; and

Whereas the court further finds that expansion of the Family Mediation Program to include financial issues could be beneficial in increasing parties’ satisfaction with the outcome of domestic relations cases, allow cases to settle more quickly, provide an expeditious and cost effective method of settling disputes and reduce litigation by the same parties,

IT IS HEREBY ORDERED THAT the 17th Judicial Circuit Family Mediation Program is expanded to include, on a pilot basis, mediation of financial issues in domestic relations cases. The description and guidelines for this pilot program are outlined in the attached document titled "17th Judicial Circuit’s Pilot Program for Mediation of Financial Issues in Domestic Relations Cases". The term of the pilot program shall be for a minimum of six months from the date of the signing of this Local Rule, following which, a review of the program will be presented to the circuit judges to determine the future of the program.


17TH JUDICIAL CIRCUIT’S
PILOT PROGRAM FOR MEDIATION OF FINANCIAL ISSUES
IN DOMESTIC RELATIONS CASES

I.  RULES

RULE 1.   DEFINITIONS

RULE 2.   STATEMENT OF PURPOSE

RULE 3.   FINANCIAL MEDIATION PILOT PROGRAM

RULE 4.   REFERRAL ASSIGNMENT PROCEDURE

RULE 5.   QUALIFICATIONS OF MEDIATORS

RULE 6.   MEDIATION PROCESS

RULE 7.   APPLICATION OF SAFEGUARDS IN CASE OF IMPAIRMENT

RULE 8.   CONFIDENTIALITY

RULE 9.   ATTENDANCE AND TERMINATION OF MEDIATION

RULE 10.  ENTRY OF JUDGMENT OR ORDER

RULE 11.  EVALUATION OF PROGRAM

II.   APPENDICES

A-FM      ORDER APPOINTING MEDIATOR FOR FINANCIAL ISSUES

B-FM      CONFIDENTIALITY AGREEMENT

C-FM      FINANCIAL MEDIATOR’S REPORT

D-FM      MEMORANDUM OF COMPLETE/PARTIAL AGREEMENT

E-FM         EVALUATION FORM FOR MEDIATOR

F-FM      EVALUATION FORM FOR ATTORNEY

G-FM      EVALUATION FORM FOR PARTY

H-FM      FINANCIAL MEDIATION STATISTICAL TERMINATION RECORD

RULE 1. DEFINITIONS

A. Mediation. When the word "mediation" is used herein, it means a cooperative process for resolving conflict with the assistance of a trained court-appointed, neutral third party, whose role is to facilitate communication, to help define issues, and to assist the parties in identifying and negotiating fair solutions that are mutually agreeable. Fundamental to the mediation process, described herein, are principles of safety, self determination, procedural informality, privacy, confidentiality, and full disclosure of relevant information between the parties.

"Shuttle mediation" is a variant of the standard process in which the mediator meets separately with each party and their attorney so that direct communication is only with the mediator who relays information, defines issues and suggests possible solutions as the participants remain in separate rooms.

"Co-mediation" is where two mediators mediate with the participants at the same time.

B. Impairment. When the word "impairment" is used herein, it means any condition, including but not limited to domestic violence or intimidation, substance abuse, or mental illness, the existence of which, in an individual or in a relationship, hinders the ability of any party to negotiate safely, competently, and in good faith. The identification of forms of impairment is designed not to require treatment, but to insure that only parties having a present, undiminished ability to negotiate are directed by court order to mediate.

RULE 2. STATEMENT OF PURPOSE

The purpose of the process is to provide a reasonable, cost-effective alternative dispute resolution forum for the parties in divorce and family litigation. The participants are encouraged to take advantage of this unique opportunity and to take a positive step toward the resolution of their issues.

The objective of mediation is not a settlement at any cost; rather it is to achieve a fair and reasonable agreement. If an agreement appears to be outside the parameters of fairness, mediators should withdraw from mediation and terminate the process.

RULE 3. FINANCIAL MEDIATION PILOT PROGRAM

A.  Mission Statement: To create a pilot project to assist willing parties by involving them and their counsel in the resolution of financial issues through a financially focused mediation process. The purpose is to accelerate the resolution of those issues in dissolution cases on a voluntary basis through mediation with the cooperation and assistance of the parties, their attorneys, and mediators specifically trained for the purpose of this project.

B.  Matters Subject to Mediation. A pilot program has been initiated to mediate property and financial issues. The designated family division judge may order mediation upon agreement of the parties (pursuant to the Court-Approved Order form) of any property issue in any action not otherwise determined to be ineligible pursuant to this program. The parties may not proceed to a judicial hearing on contested issues in that case without leave of court, or until the mediation process has been concluded and its outcome has been reported to the court. (See Appendix A for the Court-Approved Order form.)

C. Commencement of Mediation. The mediation process shall commence as soon as the Court determines it is appropriate. The designated family division judge shall be advised by counsel and/or the parties concerning:

1. Impairment of the parties as defined in Rule 1 (B).
2. Other circumstances exist which would unreasonably interfere with mediation.
3. Mediation shall not be required if the court determines, upon motion of a party, that a case is ineligible for mediation. Said motion shall be supported by affidavit setting forth specific facts detailing why mediation would be inappropriate.

D. Discovery. Discovery may continue throughout the mediation.

RULE 4. REFERRAL ASSIGNMENT PROCEDURE

A. Upon the Court’s order for the parties to participate in mediation, a mediator may be selected by agreement of the parties and their attorneys from the list of qualified mediators maintained by the presiding judge of the domestic relations division. Absent an agreement, the trial judge shall select the mediator and assign the mediator a status date on the issue of progress of the mediation. The mediators shall be compensated by the parties at the rate agreed to by the parties and the mediator, which shall be paid to the mediator prior to the commencement of the first mediation session and shall be divided equally unless otherwise ordered or agreed.

1. The Court shall designate in its order what percentage of the mediation fee should be paid by the party and/or whether the case should be considered a reduced fee or pro bono case.
2. The attorneys shall encourage the parties to mediate in good faith. The parties shall participate in mediation in good faith.
3. On or before the status date, for parties who are participating in mediation, the mediator shall submit a report to the court and the parties’ legal counsel, which shall include the information required by Rule 9. (See Appendix C for the mediator’s report form).
4. The parties shall contact the mediator within seven (7) days after the referral order is signed for the purpose of setting an appointment.

B. Conflict of Interest.

1. If the mediator appointed has or had any possible conflict of interest, including but not limited, to a current or previous therapeutic, personal or economic relationship with mother, father, child, sibling, step-parent, grandparent, household member, counsel or anyone else directly involved in the case, he or she shall decline the appointment or disclose that relationship to the attorneys and may be removed for that reason. If there is a conflict, the parties may select or the court shall appoint another mediator.

RULE 5. QUALIFICATIONS OF MEDIATORS

A. Requirements: Mediators must meet all of the following requirements:

1. Basic Training: Complete a specialized training in family mediation consisting of a court- approved course of study or certification, to consist of at least 40 hours in the following areas:
a. Conflict resolution
b. Psychological issues in separation, dissolution and family dynamics
c. Issues and needs of children in dissolution; and
d. Mediation process and techniques

2. Advanced Training: Financial mediators shall complete a one (1) day advanced training program for Financial Mediation conducted by the 17th Judicial Circuit.

3. Insurance: Maintain professional liability insurance which covers the mediation process.

B. Continuing Education: Mediators must satisfy any periodic continuing and professional education requirements that may subsequently be established by the supreme court or as may be required from time to time by the presiding judge of the family division in order to maintain the status of a court-appointed mediator.

C. Establishment of List: The 17th Judicial Circuit shall establish an initial list of five court approved financial mediators. Thereafter the 17th Judicial Circuit shall establish a list of court approved financial mediators.

RULE 6. MEDIATION PROCESS

A. Commencement:
At or prior to the initial session, the mediator shall, with the assistance of counsel:

1. Determine the issues to be mediated. At least twenty-one (21) days prior to the initial mediation session, counsel for each party shall submit to the mediator and opposing counsel a brief written summary or statement of the pending financial issues. Financial Affidavits, Statement of Assets and Liabilities and other relevant financial information shall be submitted to the Mediator. If a Pre-Trial Memorandum was previously prepared, then copies of the same shall be submitted to the Mediator. In addition, the parties shall provide any additional documentation requested by the mediator.

2. Explain that no legal advice will be provided by the mediator;

3. Disclose the nature and extent of any existing relationships with the parties or their attorneys and any personal, financial, or other interests that could result in bias or conflict of interest on the part of the mediator;

4. Inform the parties that:

a. Mediation can be suspended or terminated at the request of either party, counsel for either party or in the discretion of the mediator as outlined in Rule 6 (A)(4)(b);
b. The mediator may suspend or terminate the mediation if an impairment exists, if either party is acting in bad faith or appears not to understand the negotiation, or the prospects of achieving a responsible agreement appear unlikely;

5. Explain that the mediation process is confidential as outlined in Rule 8;

6. Confirm the parties’ and their attorneys’ understanding regarding the fee for services and any reduced fee arrangements for eligible parties with financial hardship; and

7. Reach an understanding with the parties and their attorneys as to whether the mediator may communicate with either party or their legal counsel or with other persons to discuss the issues in mediation in the absence of the parties. Any separate communication which does occur shall be disclosed to the parties at the first opportunity.

8. Advise each party that his or her legal counsel shall be present during any mediation sessions.

B. Co-mediation or Shuttle Mediation: Co-mediation or Shuttle Mediation may be utilized as deemed appropriate by the mediator.

RULE 7. APPLICATION OF SAFEGUARDS IN CASE OF IMPAIRMENT

A. Duty to Assess: While mediation is in progress, the mediator shall assess continuously whether the parties manifest any impairments affecting their ability to mediate safely, competently and in good faith.

B. Safety: If an impairment affecting safety arises during the course of mediation, the mediator shall adjourn the session to confer separately with the parties, may implement appropriate referrals to community service providers, shall advise the parties of their right to terminate and either shall:

1. Terminate mediation when circumstances indicate that protective measures are inadequate to maintain safety; or

2. Proceed with mediation after consulting separately with each party and their attorney to ascertain whether mediation in any format should continue.

C. Competency or Good Faith: If an impairment affecting competency or good faith, but not safety, arises during the course of mediation, the mediator may do the following:

1. Suspend mediation when there is a reasonable likelihood the impaired condition of an affected party is only temporary; or

2. Terminate mediation when circumstances indicate an affected party’s ability to negotiate cannot be adequately restored.

D. Effect of Termination: No mediation terminated shall proceed further unless the parties agree otherwise. In the absence of such an order, the case shall be returned to the docket for adjudication in the manner prescribed by law.

RULE 8. CONFIDENTIALITY

A. Privacy of Sessions: Mediation sessions shall be private.

B. Caucus: Caucus sessions with the mediator are confidential and shall not be disclosed to the other party or their counsel unless the mediator is authorized to do so.

C. Confidentiality: Except as otherwise provided by law, all written and verbal communications made in a mediation session conducted pursuant to these rules are confidential and may not be disclosed by the mediator or any other participant or observer of the mediation. Prior to the commencement of mediation, all participants in the mediation shall sign the confidentiality agreement prescribed by these rules. (See Appendix B).

1. Limitation of Disclosure: Admissions, representations, statements and other communications made, or disclosed in confidence by any participant in the course of mediation session shall not be admissible as evidence in any court proceeding. Except as identified herein, a mediator may not be called as a witness in any proceeding by any party or by the court to testify regarding matters disclosed in a mediation session, nor may a party be compelled to testify regarding matters disclosed during a mediation session as to privileged communications. These restrictions shall not prohibit any person from obtaining the same information independent of the mediation, or from discovery conducted pursuant to law or court rule.

2. Exceptions: Admissions, representations, statements and other communications are not confidential if:

a. all parties consent in writing to the disclosure; or

b. the communication reveals either an act of violence committed against another during mediation, or an intent to commit an act that may result in bodily harm to another; or

c. the communication is probative evidence of dissipation, fraud or other financial misconduct.

RULE 9. ATTENDANCE AND TERMINATION OF MEDIATION

A. Attendance: The parties and the attorneys shall attend the mediation session(s) and shall attend a minimum of three (3) hours of mediation. Further participation may be extended by agreement of the parties. Mediation may be terminated or suspended prior to completion of the three (3) hours upon resolution of all mediated issues.

B. Termination or Suspension: The mediation may be terminated or suspended at the election of the mediator, or one of the parties or their attorneys.

C. Notice to Court: The mediator shall immediately advise the court in writing if he or she suspends or terminates mediation or in the event that either or both parties fail to comply with the terms of this Rule.

D. Sanctions for Failure to Appear. If a party fails to appear without good cause at a previously agreed upon mediation conference or a mediation conference ordered by the court, the court upon motion may impose sanctions, including an award of mediator and attorney fees and other costs, against the party failing to appear.

E. Termination with Agreement: When agreements or partial agreements are reached by the parties during mediation, the mediator shall provide a written account of the agreements to the parties and their attorneys, but the mediator shall not provide this written account to the court. The parties shall obtain legal assistance in drafting or reviewing any final agreements. The mediator shall advise the parties that agreements reached during mediation will not be legally binding until they are reviewed by the court and signed by the judge.

F. Termination Without an Agreement: Upon termination without agreement, the mediator shall file with the court a final mediator report stating that the mediation has concluded without disclosing any reasons for the parties’ failure to reach an agreement.

G. Reporting Procedures

1. Mediator’s Report: The mediator shall prepare a Mediator’s Report on the prescribed form within ten (10) days of the termination of the last mediation session. These reports will be filed with the circuit clerk. (See Appendix C).

2. Statistical Report: The mediator shall prepare a statistical report for each case on the prescribed form and file them at least quarterly with the trial court administrator. (See Appendix H).

3. Reports to the Supreme Court: The trial court administrator or his/her designee shall provide for the maintenance of records of mediations conducted pursuant to these rules. The information shall include the number of mediations conducted, the number of mediations resulting in an agreement and those resulting in no agreement. Such information shall be furnished to the Supreme Court through its administrative office once a year or at such other interval as may be directed.

RULE 10. ENTRY OF JUDGMENT OR ORDER

A. Presentation of Order: Each mediated agreement shall be presented by the parties or their attorneys to the court within forty-five (45) days following the filing of the final Mediator’s Report.

B. Approval by Court: The court shall examine the parties as to the content and intent of the agreement and shall reject the agreement if any of its provisions are found by the court to be unconscionable. Unless the agreement is rejected, the court shall enter an appropriate judgment or order stating its findings and shall incorporate, either explicitly or by reference, the agreement so the terms of such agreement are also the terms of the judgment or order.

RULE 11. EVALUATION OF PROGRAM

A. Evaluation Forms: In order to evaluate the effectiveness of this pilot program, the participants and mediators shall submit to the Trial Court Administrator’s Office completed, questionnaire forms within ten (10) days of conclusion of the mediation session(s). Attached to these rules are evaluation forms labeled Appendix E-G respectively for that purpose.

B. Review by Committee: The “Ad Hoc Committee to Explore Mediation of Financial Issues in Domestic Relations Cases” shall meet periodically to monitor the program and report annually to the Chief Judge.

(Adopted 9/14/04)

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