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1 | AN ACT concerning alternative dispute resolution.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||
5 | Collaborative Process Act. | ||||||
6 | Section 5. Definitions. In this Act: | ||||||
7 | (1) "Collaborative process communication" means a | ||||||
8 | statement, whether oral or in a record, or verbal or nonverbal, | ||||||
9 | that: | ||||||
10 | (A) is made to conduct, participate in, continue, or | ||||||
11 | reconvene a collaborative process; and | ||||||
12 | (B) occurs after the parties sign a collaborative | ||||||
13 | process participation agreement and before the | ||||||
14 | collaborative process is concluded. | ||||||
15 | (2) "Collaborative process participation agreement" means | ||||||
16 | a written agreement by persons acting with informed consent to | ||||||
17 | participate in a collaborative process, in which the persons | ||||||
18 | agree to discharge their collaborative process lawyer and law | ||||||
19 | firm if the collaborative process fails. | ||||||
20 | (3) "Collaborative process" means a procedure intended to | ||||||
21 | resolve a collaborative process matter without intervention by | ||||||
22 | a court in which persons: | ||||||
23 | (A) sign a collaborative process participation |
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1 | agreement; and | ||||||
2 | (B) are represented by collaborative process lawyers. | ||||||
3 | (4) "Collaborative process lawyer" means a lawyer who | ||||||
4 | represents a party in a collaborative process and helps carry | ||||||
5 | out the process of the agreement, but is not a party to the | ||||||
6 | agreement. | ||||||
7 | (5) "Collaborative process matter" means a dispute, | ||||||
8 | transaction, claim, problem, or issue for resolution, | ||||||
9 | including a dispute, claim, or issue in a proceeding, which is | ||||||
10 | described in a collaborative process participation agreement | ||||||
11 | and arises under the family or domestic relations law of this | ||||||
12 | State, including: | ||||||
13 | (A) marriage, divorce, dissolution, annulment, legal | ||||||
14 | separation, and property distribution; | ||||||
15 | (B) significant decision making and parenting time of | ||||||
16 | children; | ||||||
17 | (C) maintenance and child support; | ||||||
18 | (D) adoption; | ||||||
19 | (E) parentage; and | ||||||
20 | (F) premarital, marital, and post-marital agreements. | ||||||
21 | "Collaborative process matter" does not include any | ||||||
22 | dispute, transaction, claim, problem, or issue that: (i) is the | ||||||
23 | subject of a pending action under the Juvenile Court Act of | ||||||
24 | 1987; (ii) is under investigation by the Illinois Department of | ||||||
25 | Children and Family Services pursuant to the Abused and | ||||||
26 | Neglected Child Reporting Act; or (iii) resulted in a currently |
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1 | open case with the Illinois Department of Children and Family | ||||||
2 | Services. | ||||||
3 | (6) "Law firm" means: | ||||||
4 | (A) lawyers who practice law together in a partnership, | ||||||
5 | professional corporation, sole proprietorship, limited | ||||||
6 | liability company, or association; and | ||||||
7 | (B) lawyers employed in a legal services organization, | ||||||
8 | law school or the legal department of a corporation or | ||||||
9 | other organization. | ||||||
10 | (7) "Nonparty participant" means a person, other than a | ||||||
11 | party and the party's collaborative process lawyer, that | ||||||
12 | participates in a collaborative process. | ||||||
13 | (8) "Party" means a person other than a collaborative | ||||||
14 | process lawyer that signs a collaborative process | ||||||
15 | participation agreement and whose consent is necessary to | ||||||
16 | resolve a collaborative process matter. | ||||||
17 | (9) "Person" means an individual, corporation, business | ||||||
18 | trust, estate, trust, partnership, limited liability company, | ||||||
19 | association, joint venture, public corporation, government or | ||||||
20 | governmental subdivision, agency, or instrumentality, or any | ||||||
21 | other legal or commercial entity.
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22 | (10) "Proceeding" means a judicial or other adjudicative | ||||||
23 | process before a court, including related prehearing and | ||||||
24 | post-hearing motions, conferences, and discovery. | ||||||
25 | (11) "Prospective party" means a person that discusses with | ||||||
26 | a prospective collaborative process lawyer the possibility of |
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1 | signing a collaborative process participation agreement. | ||||||
2 | (12) "Record" means information that is inscribed on a | ||||||
3 | tangible medium or that is stored in an electronic or other | ||||||
4 | medium and is retrievable in perceivable form. | ||||||
5 | (13) "Related to a collaborative process matter" means | ||||||
6 | involving the same parties, transaction or occurrence, nucleus | ||||||
7 | of operative fact, dispute, claim, or issue as the | ||||||
8 | collaborative process matter. | ||||||
9 | (14) "Sign" means, with present intent to authenticate or | ||||||
10 | adopt a record: | ||||||
11 | (A) to execute or adopt a tangible symbol; or | ||||||
12 | (B) to attach to or logically associate with the record | ||||||
13 | an electronic symbol, sound, or process. | ||||||
14 | Section 10. Applicability. This Act applies to a | ||||||
15 | collaborative process participation agreement that meets the | ||||||
16 | requirements of Section 15 signed on or after the effective | ||||||
17 | date of this Act. | ||||||
18 | Section 15. Collaborative process participation agreement; | ||||||
19 | requirements. | ||||||
20 | (a) A collaborative process participation agreement must: | ||||||
21 | (1) be in a record; | ||||||
22 | (2) be signed by the parties; | ||||||
23 | (3) state the parties' intention to resolve a | ||||||
24 | collaborative process matter through a collaborative |
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1 | process under this Act; | ||||||
2 | (4) state the parties' agreement to discharge their | ||||||
3 | collaborative process lawyers and law firms if the | ||||||
4 | collaborative process fails. | ||||||
5 | (5) describe the nature and scope of the matter; | ||||||
6 | (6) identify the collaborative process lawyer who | ||||||
7 | represents each party in the process; and | ||||||
8 | (7) contain a statement by each collaborative process | ||||||
9 | lawyer confirming the lawyer's representation of a party in | ||||||
10 | the collaborative process. | ||||||
11 | (b) Parties may agree to include in a collaborative process | ||||||
12 | participation agreement additional provisions not inconsistent | ||||||
13 | with this Act.
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14 | Section 20. Beginning and concluding the collaborative | ||||||
15 | process.
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16 | (a) A collaborative process begins when the parties sign a | ||||||
17 | collaborative process participation agreement. | ||||||
18 | (b) A court may not order a party to participate in a | ||||||
19 | collaborative process over that party's objection. | ||||||
20 | (c) A collaborative process is concluded by: | ||||||
21 | (1) resolution of a collaborative process matter as | ||||||
22 | evidenced by a signed record of the parties; | ||||||
23 | (2) resolution of a part of the collaborative process | ||||||
24 | matter, evidenced by a signed record of the parties, in | ||||||
25 | which the parties agree that the remaining parts of the |
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1 | matter will not be resolved in the process; or | ||||||
2 | (3) termination of the process. | ||||||
3 | (d) A collaborative process terminates: | ||||||
4 | (1) when a party gives notice to other parties in a | ||||||
5 | record that the process is ended; | ||||||
6 | (2) when a party: | ||||||
7 | (A) begins a proceeding related to a collaborative | ||||||
8 | process matter without the agreement of all parties; or | ||||||
9 | (B) in a pending proceeding related to the matter: | ||||||
10 | (i) initiates a pleading, motion, order to | ||||||
11 | show cause, or request for a conference with the | ||||||
12 | court; | ||||||
13 | (ii) requests that the proceeding be put on the | ||||||
14 | court's active calendar; or | ||||||
15 | (iii) takes similar action requiring notice to | ||||||
16 | be sent to the parties; | ||||||
17 | (3) except as otherwise provided by subsection (g), | ||||||
18 | when a party discharges a collaborative process lawyer or a | ||||||
19 | collaborative process lawyer withdraws from further | ||||||
20 | representation of a party; or | ||||||
21 | (4) when the process no longer meets the definition of | ||||||
22 | collaborative process matter. | ||||||
23 | (e) A party's collaborative process lawyer shall give | ||||||
24 | prompt notice to all other parties in a record of a discharge | ||||||
25 | or withdrawal. | ||||||
26 | (f) A party may terminate a collaborative process with or |
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1 | without cause. | ||||||
2 | (g) A collaborative process continues, despite the | ||||||
3 | discharge or withdrawal of a collaborative process lawyer, if | ||||||
4 | not later than 30 days after the date that the notice of the | ||||||
5 | discharge or withdrawal of a collaborative process lawyer | ||||||
6 | required by subsection (e) is sent to the parties: | ||||||
7 | (1) the unrepresented party engages a successor | ||||||
8 | collaborative process lawyer; and | ||||||
9 | (2) in a signed record: | ||||||
10 | (A) the parties consent to continue the process by | ||||||
11 | reaffirming the collaborative process participation | ||||||
12 | agreement; | ||||||
13 | (B) the agreement is amended to identify the | ||||||
14 | successor collaborative process lawyer; and
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15 | (C) the successor collaborative process lawyer | ||||||
16 | confirms the lawyer's representation of a party in the | ||||||
17 | collaborative process. | ||||||
18 | (h) A collaborative process does not conclude if, with the | ||||||
19 | consent of the parties, a party requests a court to approve a | ||||||
20 | resolution of the collaborative process matter or any part | ||||||
21 | thereof as evidenced by a signed record. | ||||||
22 | (i) A collaborative process participation agreement may | ||||||
23 | provide additional methods of concluding a collaborative | ||||||
24 | process. | ||||||
25 | Section 25. Proceedings pending before a court; status |
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1 | report.
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2 | (a) Persons in a proceeding pending before a court may sign | ||||||
3 | a collaborative process participation agreement to seek to | ||||||
4 | resolve a collaborative process matter related to the | ||||||
5 | proceeding. The parties shall file promptly with the court a | ||||||
6 | notice of the agreement after it is signed. Subject to | ||||||
7 | subsection (c) and Sections 30 and 35, the filing operates as | ||||||
8 | an application for a stay of the proceeding.
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9 | (b) The parties shall file promptly with the court notice | ||||||
10 | in a record when a collaborative process concludes. The stay of | ||||||
11 | the proceeding, if granted, under subsection (a) is lifted when | ||||||
12 | the notice is filed. The notice may not specify any reason for | ||||||
13 | termination of the process. | ||||||
14 | (c) A court in which a proceeding is stayed under | ||||||
15 | subsection (a) may require the parties and collaborative | ||||||
16 | process lawyers to provide a status report on the collaborative | ||||||
17 | process and the proceeding. A status report may include only | ||||||
18 | information on: (i) whether the process is ongoing or | ||||||
19 | concluded; or (ii) the anticipated duration of the | ||||||
20 | collaborative process. | ||||||
21 | (d) A court may not consider a communication made in | ||||||
22 | violation of subsection (c). | ||||||
23 | (e) A court shall provide parties notice and an opportunity | ||||||
24 | to be heard before dismissing a proceeding in which a notice of | ||||||
25 | collaborative process is filed based on delay or failure to | ||||||
26 | prosecute.
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1 | Section 30. Emergency order. Nothing in the collaborative | ||||||
2 | process may prohibit a party from seeking an emergency order to | ||||||
3 | protect the health, safety, welfare, or interest of a party or | ||||||
4 | person identified as protected in Section 201 of the Illinois | ||||||
5 | Domestic Violence Act of 1986, or may prohibit a party or | ||||||
6 | nonparty participant from making a report of abuse, neglect, | ||||||
7 | abandonment, or exploitation of a child or adult under the law | ||||||
8 | of this State. | ||||||
9 | Section 35. Approval of agreement by the court. A court may | ||||||
10 | approve an agreement resulting from a collaborative process. An | ||||||
11 | agreement resulting from the collaborative process shall be | ||||||
12 | presented to the court for approval if the agreement is to be | ||||||
13 | enforceable. | ||||||
14 | Section 40. Disclosure of information. Voluntary informal | ||||||
15 | disclosure of information related to a matter is a defining | ||||||
16 | characteristic of the collaborative process. Except as | ||||||
17 | provided by law other than this Act, during the collaborative | ||||||
18 | process, on the request of another party, a party shall make | ||||||
19 | timely, full, candid, and informal disclosure of information | ||||||
20 | related to the collaborative process matter without formal | ||||||
21 | discovery. A party also shall update promptly previously | ||||||
22 | disclosed information that has materially changed. The parties | ||||||
23 | may define the scope of disclosure during the collaborative |
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1 | process. | ||||||
2 | Section 45. Standards of professional responsibility and | ||||||
3 | mandatory reporting not affected. This Act does not affect:
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4 | (1) the professional responsibility obligations and | ||||||
5 | standards applicable to a lawyer or other licensed | ||||||
6 | professional; or
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7 | (2) the obligation of a person to report abuse or | ||||||
8 | neglect, abandonment, or exploitation of a child or adult | ||||||
9 | under the law of this State.
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10 | Section 50. Confidentiality of collaborative process | ||||||
11 | communication. A collaborative process communication is | ||||||
12 | confidential to the extent agreed by the parties in a signed | ||||||
13 | record or as provided by law of this State other than this Act. | ||||||
14 | Section 55. Privilege against disclosure for collaborative | ||||||
15 | process communication; admissibility; discovery.
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16 | (a) Subject to Sections 60 and 65, a collaborative process | ||||||
17 | communication is privileged under subsection (b), is not | ||||||
18 | subject to discovery, and is not admissible in evidence. | ||||||
19 | (b) In a proceeding, the following privileges apply:
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20 | (1) A party may refuse to disclose, and may prevent any | ||||||
21 | other person from disclosing, a collaborative process | ||||||
22 | communication. | ||||||
23 | (2) A nonparty participant may refuse to disclose, and |
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1 | may prevent any other person from disclosing, a | ||||||
2 | collaborative process communication of the nonparty | ||||||
3 | participant.
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4 | (c) Evidence or information that is otherwise admissible or | ||||||
5 | subject to discovery does not become inadmissible or protected | ||||||
6 | from discovery solely because of its disclosure or use in a | ||||||
7 | collaborative process. | ||||||
8 | Section 60. Waiver and preclusion of privilege.
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9 | (a) A privilege under Section 55 may be waived in a record | ||||||
10 | or orally during a proceeding if it is expressly waived by all | ||||||
11 | parties and, in the case of the privilege of a nonparty | ||||||
12 | participant, it is also expressly waived by the nonparty | ||||||
13 | participant.
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14 | (b) A person that makes a disclosure or representation | ||||||
15 | about a collaborative process communication which prejudices | ||||||
16 | another person in a proceeding may not assert a privilege under | ||||||
17 | Section 55, but this preclusion applies only to the extent | ||||||
18 | necessary for the person prejudiced to respond to the | ||||||
19 | disclosure or representation.
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20 | Section 65. Limits of privilege.
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21 | (a) There is no privilege under Section 55 for a | ||||||
22 | collaborative process communication that is: | ||||||
23 | (1) available to the public under the Freedom of | ||||||
24 | Information Act or made during a session of a collaborative |
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1 | process that is open, or is required by law to be open, to | ||||||
2 | the public; | ||||||
3 | (2) a threat or statement of a plan to inflict bodily | ||||||
4 | injury or commit a crime of violence as defined in Section | ||||||
5 | 1-10 of the Alcoholism and Other Drug Abuse and Dependency | ||||||
6 | Act; | ||||||
7 | (3) intentionally used to plan a crime, commit or | ||||||
8 | attempt to commit a crime, or conceal an ongoing crime or | ||||||
9 | ongoing criminal activity; or | ||||||
10 | (4) in an agreement resulting from the collaborative | ||||||
11 | process, evidenced by a record signed by all parties to the | ||||||
12 | agreement. | ||||||
13 | (b) The privileges under Section 55 for a collaborative | ||||||
14 | process communication do not apply to the extent that a | ||||||
15 | communication is: | ||||||
16 | (1) sought or offered to prove or disprove a claim or | ||||||
17 | complaint of professional misconduct or malpractice | ||||||
18 | arising from or related to a collaborative process; or | ||||||
19 | (2) sought or offered to prove or disprove abuse, | ||||||
20 | neglect, abandonment, or exploitation of a child or adult. | ||||||
21 | (c) There is no privilege under Section 55 if a court | ||||||
22 | finds, after a hearing in camera, that the party seeking | ||||||
23 | discovery or the proponent of the evidence has shown the | ||||||
24 | evidence is not otherwise available, the need for the evidence | ||||||
25 | substantially outweighs the interest in protecting | ||||||
26 | confidentiality, and the collaborative process communication |
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1 | is sought or offered in: | ||||||
2 | (1) a court proceeding involving a felony or | ||||||
3 | misdemeanor; or | ||||||
4 | (2) a proceeding seeking rescission or reformation of a | ||||||
5 | contract arising out of the collaborative process or in | ||||||
6 | which a defense to avoid liability on the contract is | ||||||
7 | asserted. | ||||||
8 | (d) If a collaborative process communication is subject to | ||||||
9 | an exception under subsection (b) or (c), only the part of the | ||||||
10 | communication necessary for the application of the exception | ||||||
11 | may be disclosed or admitted. | ||||||
12 | (e) Disclosure or admission of evidence excepted from the | ||||||
13 | privilege under subsection (b) or (c) does not make the | ||||||
14 | evidence or any other collaborative process communication | ||||||
15 | discoverable or admissible for any other purpose. | ||||||
16 | (f) The privileges under Section 55 do not apply if the | ||||||
17 | parties agree in advance in a signed record, or if a record of | ||||||
18 | a proceeding reflects agreement by the parties, that all or | ||||||
19 | part of a collaborative process is not privileged. This | ||||||
20 | subsection does not apply to a collaborative process | ||||||
21 | communication made by a person that did not receive actual | ||||||
22 | notice of the agreement before the communication was made.
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23 | Section 70. Authority of the Illinois Supreme Court. This | ||||||
24 | Act is subject to the supervisory authority of the Illinois | ||||||
25 | Supreme Court. |