Standards for Neutrals and Programs
In the court ADR setting, the term "standards" is used in a number of ways. Standards can pertain to the quality of neutrals (i.e. how well they do their jobs), the ethics under which they work (e.g., adherence to particular codes of ethics), the qualifications they must meet in order to be approved to handle court cases (e.g., hours of training, type of experience), or all of the above. Sometimes standards are set for entire programs, rather than for the individual neutrals. This site provides information on each of these approaches to the concept of standards.
First, it is important to know what standards do not exist in Illinois. There are no statewide certification standards for mediators or arbitrators. The Illinois Supreme Court has, however, established criteria for specific types of programs, which are then implemented on a circuit or county basis. To the extent they exist, standards - meaning ethics and qualifications - for neutrals in court ADR programs in Illinois generally are set on a local basis.
For example, Supreme Court Rule 99 establishes the types of criteria court mediation programs must address in their local rules to be approved by the Supreme Court, such as qualifications of mediators, discovery, finalizing the mediation agreement, and confidentiality. Local rules then set particular standards for those criteria. These include: what training, education and experience are required of mediators; what discovery is permitted and what the schedule will be; how any mediation agreement will be memorialized; and what will and will not be confidential. Supreme Court Rule 905, which mandates mediation for all child custody and visitation cases except when the court finds an impediment to mediation, starts by requiring that programs meet all the criteria in Rule 99 and then adds criteria specific to these types of cases, such as mediator training and mediator expertise. Local rules may add additional ethical issues, such as determining good faith participation by parties, the mediator's responsibility to determine impairment of parties, conflict of interest expectations, etc.
In setting ethical standards in local rules, some courts rely on standards enacted by professional organizations. For example, one judicial circuit has adopted the Model Standards of Conduct for Mediators (established jointly by the American Arbitration Association, the American Bar Association, and the Association for Conflict Resolution) as their ethical standards, while another circuit requires roster mediators to be members of the Association for Conflict Resolution. Other circuits have different practices, such as requiring membership in the Mediation Council of Illinois and adherence to its code of ethics. Judicial circuits also may adopt rules for particular programs that do not include standards for mediator ethical conduct at all.
Standards are useful not only for individual neutrals, but for ADR programs overall. When establishing and operating court ADR programs, courts can turn to the National Standards for Court-Connected ADR Programs. While the National Standards do not have authority over court programs, this comprehensive guide provides information and insight into each aspect of program health.
Note: While there is no "certification" of mediators or any other neutrals in Illinois, local jurisdictions do have mechanisms for approving neutrals to practice as part of their programs. This may be called certification, but it does not have a meaning beyond being approved to practice as part of that particular court program.
Updates or suggestions for additional standards related to court ADR in Illinois are welcome. To provide information, contact RSI.