Public Act 93-0399
HB2146 Enrolled LRB093 07999 LRD 08195 b
AN ACT concerning mediation.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Title. This Act may be cited as the Uniform
Mediation Act.
Section 2. Definitions. In this Act:
(1) "Mediation" means a process in which a mediator
facilitates communication and negotiation between parties
to assist them in reaching a voluntary agreement
regarding their dispute.
(2) "Mediation communication" means a statement,
whether oral or in a record or verbal or nonverbal, that
occurs during a mediation or is made for purposes of
considering, conducting, participating in, initiating,
continuing, or reconvening a mediation or retaining a
mediator.
(3) "Mediator" means an individual who conducts a
mediation.
(4) "Nonparty participant" means a person, other
than a party or mediator, that participates in a
mediation.
(5) "Mediation party" means a person that
participates in a mediation and whose agreement is
necessary to resolve the dispute.
(6) "Person" means an individual, corporation,
business trust, estate, trust, partnership, limited
liability company, association, joint venture,
government, governmental subdivision, agency, or
instrumentality, public corporation, or any other legal
or commercial entity.
(7) "Proceeding" means:
(A) a judicial, administrative, arbitral, or
other adjudicative process, including related
pre-hearing and post-hearing motions, conferences,
and discovery; or
(B) a legislative hearing or similar process.
(8) "Record" means information that is inscribed on
a tangible medium or that is stored in an electronic or
other medium and is retrievable in perceivable form.
(9) "Sign" means:
(A) to execute or adopt a tangible symbol with
the present intent to authenticate a record; or
(B) to attach or logically associate an
electronic symbol, sound, or process to or with a
record with the present intent to authenticate a
record.
Section 3. Scope.
(a) Except as otherwise provided in subsection (b) or
(c), this Act applies to a mediation in which:
(1) the mediation parties are required to mediate
by statute or court or administrative agency rule or
referred to mediation by a court, administrative agency,
or arbitrator;
(2) the mediation parties and the mediator agree to
mediate in a record that demonstrates an expectation that
mediation communications will be privileged against
disclosure; or
(3) the mediation parties use as a mediator an
individual who holds himself or herself out as a
mediator, or the mediation is provided by a person that
holds itself out as providing mediation.
(b) The Act does not apply to a mediation:
(1) relating to the establishment, negotiation,
administration, or termination of a collective bargaining
relationship;
(2) relating to a dispute that is pending under or
is part of the processes established by a collective
bargaining agreement, except that the Act applies to a
mediation arising out of a dispute that has been filed
with an administrative agency or court;
(3) conducted by a judge who might make a ruling on
the case; or
(4) conducted under the auspices of:
(A) a primary or secondary school if all the
parties are students; or
(B) a correctional institution for youths if
all the parties are residents of that institution.
(c) If the parties agree in advance in a signed record,
or a record of proceeding reflects agreement by the parties,
that all or part of a mediation is not privileged, the
privileges under Sections 4 through 6 do not apply to the
mediation or part agreed upon. However, Sections 4 through 6
apply to a mediation communication made by a person that has
not received actual notice of the agreement before the
communication is made.
Section 4. Privilege against disclosure; admissibility;
discovery.
(a) Except as otherwise provided in Section 6, a
mediation communication is privileged as provided in
subsection (b) and is not subject to discovery or admissible
in evidence in a proceeding unless waived or precluded as
provided by Section 5.
(b) In a proceeding, the following privileges apply:
(1) A mediation party may refuse to disclose, and
may prevent any other person from disclosing, a mediation
communication.
(2) A mediator may refuse to disclose a mediation
communication, and may prevent any other person from
disclosing a mediation communication of the mediator.
(3) A nonparty participant may refuse to disclose,
and may prevent any other person from disclosing, a
mediation communication of the nonparty participant.
(c) Evidence or information that is otherwise admissible
or subject to discovery does not become inadmissible or
protected from discovery solely by reason of its disclosure
or use in a mediation.
Section 5. Waiver and preclusion of privilege.
(a) A privilege under Section 4 may be waived in a
record or orally during a proceeding if it is expressly
waived by all parties to the mediation and:
(1) in the case of the privilege of a mediator, it
is expressly waived by the mediator; and
(2) in the case of the privilege of a nonparty
participant, it is expressly waived by the nonparty
participant.
(b) A person that discloses or makes a representation
about a mediation communication which prejudices another
person in a proceeding is precluded from asserting a
privilege under Section 4, but only to the extent necessary
for the person prejudiced to respond to the representation or
disclosure.
(c) A person that intentionally uses a mediation to
plan, attempt to commit or commit a crime, or to conceal an
ongoing crime or ongoing criminal activity is precluded from
asserting a privilege under Section 4.
Section 6. Exceptions to privilege.
(a) There is no privilege under Section 4 for a
mediation communication that is:
(1) in an agreement evidenced by a record signed by
all parties to the agreement;
(2) available to the public under the Freedom of
Information Act or made during a session or a mediation
which is open, or is required by law to be open, to the
public;
(3) a threat or statement of a plan to inflict
bodily injury or commit a crime of violence;
(4) intentionally used to plan a crime, attempt to
commit a crime, or to conceal an ongoing crime or ongoing
criminal activity;
(5) sought or offered to prove or disprove a claim
or complaint of professional misconduct or malpractice
filed against a mediator;
(6) except as otherwise provided in subsection (c),
sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed
against a mediation party, nonparty participant, or
representative of a party based on conduct occurring
during a mediation; or
(7) sought or offered to prove or disprove abuse,
neglect, abandonment, or exploitation in a proceeding in
which a child or adult protective services agency is a
party, unless the case is referred by a court to
mediation and a public agency participates.
(b) There is no privilege under Section 4 if a court,
administrative agency, or arbitrator finds, after a hearing
in camera, that the party seeking discovery or the proponent
of the evidence has shown that the evidence is not otherwise
available, that there is a need for the evidence that
substantially outweighs the interest in protecting
confidentiality, and that the mediation communication is
sought or offered in:
(1) a court proceeding involving a felony; or
(2) except as otherwise provided in subsection (c),
a proceeding to prove a claim to rescind or reform or a
defense to avoid liability on a contract arising out of
the mediation.
(c) A mediator may not be compelled to provide evidence
of a mediation communication referred to in subsection (a)(6)
or (b)(2).
(d) If a mediation communication is not privileged under
subsection (a) or (b), only the portion of the communication
necessary for the application of the exception from
nondisclosure may be admitted. Admission of evidence under
subsection (a) or (b) does not render the evidence, or any
other mediation communication, discoverable or admissible for
any other purpose.
Section 7. Prohibited mediator reports.
(a) Except as required in subsection (b), a mediator may
not make a report, assessment, evaluation, recommendation,
finding, or other communication regarding a mediation to a
court, administrative agency, or other authority that may
make a ruling on the dispute that is the subject of the
mediation.
(b) A mediator may disclose:
(1) whether the mediation occurred or has
terminated, whether a settlement was reached, and
attendance;
(2) a mediation communication as permitted under
Section 6; or
(3) a mediation communication evidencing abuse,
neglect, abandonment, or exploitation of an individual to
a public agency responsible for protecting individuals
against such mistreatment.
(c) A communication made in violation of subsection (a)
may not be considered by a court, administrative agency, or
arbitrator.
Section 8. Confidentiality. Unless subject to the Open
Meetings Act or the Freedom of Information Act, mediation
communications are confidential to the extent agreed by the
parties or provided by other law or rule of this State.
Section 9. Mediator's disclosure of conflicts of
interest; background.
(a) Before accepting a mediation, an individual who is
requested to serve as a mediator shall:
(1) make an inquiry that is reasonable under the
circumstances to determine whether there are any known
facts that a reasonable individual would consider likely
to affect the impartiality of the mediator, including a
financial or personal interest in the outcome of the
mediation and an existing or past relationship with a
mediation party or foreseeable participant in the
mediation; and
(2) disclose any such known fact to the mediation
parties as soon as is practical before accepting a
mediation.
(b) If a mediator learns any fact described in
subsection (a)(l) after accepting a mediation, the mediator
shall disclose it as soon as is practicable.
(c) At the request of a mediation party, an individual
who is requested to serve as a mediator shall disclose the
mediator's qualifications to mediate a dispute.
(d) A person that violates subsection (a), (b), or (g)
is precluded by the violation from asserting a privilege
under Section 4.
(e) Subsections (a), (b), (c), and (g) do not apply to
an individual acting as a judge.
(f) This Act does not require that a mediator have a
special qualification by background or profession.
(g) A mediator must be impartial, unless after
disclosure of the facts required in subsections (a) and (b)
to be disclosed, the parties agree otherwise.
Section 10. Participation in mediation. An attorney or
other individual designated by a party may accompany the
party to and participate in a mediation. A waiver of
participation given before the mediation may be rescinded.
Section 11. Relation to Electronic Signatures in Global
and National Commerce Act. This Act modifies, limits, or
supersedes the federal Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. Section 7001 et seq., but
this Act does not modify, limit, or supersede Section 101(c)
of that Act or authorize electronic delivery of any of the
notices described in Section 103(b) of that Act.
Section 12. Uniformity of application and construction.
In applying and construing this Act, consideration must be
given to the need to promote uniformity of the law with
respect to its subject matter among States that enact it.
Section 13. Severability clause. If any provision of this
Act or its application to any person or circumstance is held
invalid, the invalidity does not affect other provisions or
applications of this Act which can be given effect without
the invalid provision or application, and to this end the
provisions of this Act are severable.
Section 16. Application to existing agreements or
referrals.
(a) This Act governs a mediation pursuant to a referral
or an agreement to mediate made on or after January 1, 2004.
(b) On or after January 1, 2004, this Act governs an
agreement to mediate whenever made.
Section 90. The Condominium Property Act is amended by
changing Section 32 as follows:
(765 ILCS 605/32)
Sec. 32. Alternate dispute resolution; mediation;
arbitration.
(a) The declaration or bylaws of a condominium
association may require mediation or arbitration of disputes
in which the matter in controversy has either no specific
monetary value or a value of $10,000 or less, other than the
levying and collection of assessments, or that arises out of
violations of the declaration, bylaws, or rules and
regulations of the condominium association. A dispute not
required to be mediated or arbitrated by an association
pursuant to its powers under this Section, that is submitted
to mediation or arbitration by the agreement of the
disputants, is also subject to this Section.
(b) The Illinois Uniform Arbitration Act shall govern
all arbitrations proceeding under this Section.
(b-5) The Uniform Mediation Act shall govern all
mediations proceeding under this Section.
(c) The association may require the disputants to bear
the costs of mediation or arbitration.
(Source: P.A. 89-41, eff. 6-23-95.)
Section 99. Effective date. This Act takes effect January
1, 2004.