093_HB2146enr

 
HB2146 Enrolled                      LRB093 07999 LRD 08195 b

 1        AN ACT concerning mediation.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  1.  Title.  This Act may be cited as the Uniform
 5    Mediation Act.

 6        Section 2. Definitions. In this Act:
 7             (1)  "Mediation" means a process in which a mediator
 8        facilitates communication and negotiation between parties
 9        to  assist  them  in  reaching  a   voluntary   agreement
10        regarding their dispute.
11             (2)  "Mediation  communication"  means  a statement,
12        whether oral or in a record or verbal or nonverbal,  that
13        occurs  during  a  mediation  or  is made for purposes of
14        considering, conducting,  participating  in,  initiating,
15        continuing,  or  reconvening  a  mediation or retaining a
16        mediator.
17             (3)  "Mediator" means an individual who  conducts  a
18        mediation.
19             (4)  "Nonparty  participant"  means  a person, other
20        than  a  party  or  mediator,  that  participates  in   a
21        mediation.
22             (5)  "Mediation   party"   means   a   person   that
23        participates  in  a  mediation  and  whose  agreement  is
24        necessary to resolve the dispute.
25             (6)  "Person"   means  an  individual,  corporation,
26        business  trust,  estate,  trust,  partnership,   limited
27        liability    company,    association,    joint   venture,
28        government,   governmental   subdivision,   agency,    or
29        instrumentality,  public  corporation, or any other legal
30        or commercial entity.
31             (7)  "Proceeding" means:
 
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 1                  (A)  a judicial, administrative,  arbitral,  or
 2             other   adjudicative   process,   including  related
 3             pre-hearing and post-hearing  motions,  conferences,
 4             and discovery; or
 5                  (B)  a legislative hearing or similar process.
 6             (8)  "Record" means information that is inscribed on
 7        a  tangible  medium or that is stored in an electronic or
 8        other medium and is retrievable in perceivable form.
 9             (9)  "Sign" means:
10                  (A)  to execute or adopt a tangible symbol with
11             the present intent to authenticate a record; or
12                  (B)  to  attach  or  logically   associate   an
13             electronic  symbol,  sound,  or process to or with a
14             record with the present  intent  to  authenticate  a
15             record.

16        Section 3. Scope.
17        (a)  Except  as  otherwise  provided in subsection (b) or
18    (c), this Act applies to a mediation in which:
19             (1)  the mediation parties are required  to  mediate
20        by  statute  or  court  or  administrative agency rule or
21        referred to mediation by a court, administrative  agency,
22        or arbitrator;
23             (2)  the mediation parties and the mediator agree to
24        mediate in a record that demonstrates an expectation that
25        mediation   communications  will  be  privileged  against
26        disclosure; or
27             (3)  the mediation parties  use  as  a  mediator  an
28        individual   who  holds  himself  or  herself  out  as  a
29        mediator, or the mediation is provided by a  person  that
30        holds itself out as providing mediation.
31        (b)  The Act does not apply to a mediation:
32             (1)  relating  to  the  establishment,  negotiation,
33        administration, or termination of a collective bargaining
 
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 1        relationship;
 2             (2)  relating  to a dispute that is pending under or
 3        is part of the  processes  established  by  a  collective
 4        bargaining  agreement,  except  that the Act applies to a
 5        mediation arising out of a dispute that  has  been  filed
 6        with an administrative agency or court;
 7             (3)  conducted by a judge who might make a ruling on
 8        the case; or
 9             (4)  conducted under the auspices of:
10                  (A)  a  primary  or secondary school if all the
11             parties are students; or
12                  (B)  a correctional institution for  youths  if
13             all the parties are residents of that institution.
14        (c)  If  the parties agree in advance in a signed record,
15    or a record of proceeding reflects agreement by the  parties,
16    that  all  or  part  of  a  mediation  is not privileged, the
17    privileges under Sections 4 through 6 do  not  apply  to  the
18    mediation  or part agreed upon. However, Sections 4 through 6
19    apply to a mediation communication made by a person that  has
20    not  received  actual  notice  of  the  agreement  before the
21    communication is made.

22        Section 4. Privilege against  disclosure;  admissibility;
23    discovery.
24        (a)  Except   as  otherwise  provided  in  Section  6,  a
25    mediation  communication  is  privileged   as   provided   in
26    subsection  (b) and is not subject to discovery or admissible
27    in evidence in a proceeding unless  waived  or  precluded  as
28    provided by Section 5.
29        (b)  In a proceeding, the following privileges apply:
30             (1)  A  mediation  party may refuse to disclose, and
31        may prevent any other person from disclosing, a mediation
32        communication.
33             (2)  A mediator may refuse to disclose  a  mediation
 
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 1        communication,  and  may  prevent  any  other person from
 2        disclosing a mediation communication of the mediator.
 3             (3)  A nonparty participant may refuse to  disclose,
 4        and  may  prevent  any  other  person  from disclosing, a
 5        mediation communication of the nonparty participant.
 6        (c)  Evidence or information that is otherwise admissible
 7    or subject to  discovery  does  not  become  inadmissible  or
 8    protected  from  discovery solely by reason of its disclosure
 9    or use in a mediation.

10        Section 5. Waiver and preclusion of privilege.
11        (a)  A privilege under Section  4  may  be  waived  in  a
12    record  or  orally  during  a  proceeding  if it is expressly
13    waived by all parties to the mediation and:
14             (1)  in the case of the privilege of a mediator,  it
15        is expressly waived by the mediator; and
16             (2)  in  the  case  of  the  privilege of a nonparty
17        participant, it  is  expressly  waived  by  the  nonparty
18        participant.
19        (b)  A  person  that  discloses or makes a representation
20    about a  mediation  communication  which  prejudices  another
21    person   in  a  proceeding  is  precluded  from  asserting  a
22    privilege under Section 4, but only to the  extent  necessary
23    for the person prejudiced to respond to the representation or
24    disclosure.
25        (c)  A  person  that  intentionally  uses  a mediation to
26    plan, attempt to commit or commit a crime, or to  conceal  an
27    ongoing  crime or ongoing criminal activity is precluded from
28    asserting a privilege under Section 4.

29         Section 6. Exceptions to privilege.
30         (a)  There  is  no  privilege  under  Section  4  for  a
31    mediation communication that is:
32             (1)  in an agreement evidenced by a record signed by
 
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 1        all parties to the agreement;
 2             (2)  available  to  the  public under the Freedom of
 3        Information Act or made during a session or  a  mediation
 4        which  is open, or is required by  law to be open, to the
 5        public;
 6             (3)  a threat or statement  of  a  plan  to  inflict
 7        bodily injury or commit a crime of violence;
 8             (4)  intentionally  used to plan a crime, attempt to
 9        commit a crime, or to conceal an ongoing crime or ongoing
10        criminal activity;
11             (5)  sought or offered to prove or disprove a  claim
12        or  complaint  of  professional misconduct or malpractice
13        filed against a mediator;
14             (6)  except as otherwise provided in subsection (c),
15        sought or  offered  to  prove  or  disprove  a  claim  or
16        complaint of professional misconduct or malpractice filed
17        against  a  mediation  party,  nonparty  participant,  or
18        representative  of  a  party  based  on conduct occurring
19        during a mediation; or
20             (7)  sought or offered to prove or  disprove  abuse,
21        neglect, abandonment, or  exploitation in a proceeding in
22        which  a  child  or adult protective services agency is a
23        party,  unless  the  case  is  referred  by  a  court  to
24        mediation and a public agency participates.
25        (b)  There is no privilege under Section 4  if  a  court,
26    administrative  agency,  or arbitrator finds, after a hearing
27    in camera, that the party seeking discovery or the  proponent
28    of  the evidence has shown that the evidence is not otherwise
29    available, that  there  is  a  need  for  the  evidence  that
30    substantially    outweighs   the   interest   in   protecting
31    confidentiality, and  that  the  mediation  communication  is
32    sought or offered in:
33             (1)  a court proceeding involving a felony; or
34             (2)  except as otherwise provided in subsection (c),
 
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 1        a  proceeding  to prove a claim to rescind or reform or a
 2        defense to avoid liability on a contract arising  out  of
 3        the mediation.
 4        (c)  A  mediator may not be compelled to provide evidence
 5    of a mediation communication referred to in subsection (a)(6)
 6    or (b)(2).
 7        (d)  If a mediation communication is not privileged under
 8    subsection (a) or (b), only the portion of the  communication
 9    necessary   for   the   application  of  the  exception  from
10    nondisclosure may be admitted. Admission  of  evidence  under
11    subsection  (a)  or  (b) does not render the evidence, or any
12    other mediation communication, discoverable or admissible for
13    any other purpose.

14        Section 7. Prohibited mediator reports.
15        (a)  Except as required in subsection (b), a mediator may
16    not make a report,  assessment,  evaluation,  recommendation,
17    finding,  or  other  communication regarding a mediation to a
18    court, administrative agency, or  other  authority  that  may
19    make  a  ruling  on  the  dispute  that is the subject of the
20    mediation.
21        (b)  A mediator may disclose:
22             (1)  whether   the   mediation   occurred   or   has
23        terminated,  whether  a  settlement  was   reached,   and
24        attendance;
25             (2)  a  mediation  communication  as permitted under
26        Section 6; or
27             (3)  a  mediation  communication  evidencing  abuse,
28        neglect, abandonment, or exploitation of an individual to
29        a public agency responsible  for  protecting  individuals
30        against such mistreatment.
31        (c)  A  communication made in violation of subsection (a)
32    may not be considered by a court, administrative  agency,  or
33    arbitrator.
 
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 1        Section  8.  Confidentiality.  Unless subject to the Open
 2    Meetings Act or the Freedom  of  Information  Act,  mediation
 3    communications  are  confidential to the extent agreed by the
 4    parties or provided by other law or rule of this State.

 5        Section  9.  Mediator's  disclosure   of   conflicts   of
 6    interest; background.
 7        (a)  Before  accepting  a mediation, an individual who is
 8    requested to serve as a mediator shall:
 9             (1)  make an inquiry that is  reasonable  under  the
10        circumstances  to  determine  whether there are any known
11        facts that a reasonable individual would consider  likely
12        to  affect  the impartiality of the mediator, including a
13        financial or personal interest  in  the  outcome  of  the
14        mediation  and  an  existing  or past relationship with a
15        mediation  party  or  foreseeable  participant   in   the
16        mediation; and
17             (2)  disclose  any  such known fact to the mediation
18        parties as  soon  as  is  practical  before  accepting  a
19        mediation.
20        (b)  If   a   mediator   learns  any  fact  described  in
21    subsection (a)(l) after accepting a mediation,  the  mediator
22    shall disclose it as soon as is practicable.
23        (c)  At  the  request of a mediation party, an individual
24    who is requested to serve as a mediator  shall  disclose  the
25    mediator's qualifications to mediate a dispute.
26        (d)  A  person  that violates subsection (a), (b), or (g)
27    is precluded by the  violation  from  asserting  a  privilege
28    under Section 4.
29        (e)  Subsections  (a),  (b), (c), and (g) do not apply to
30    an individual acting as a judge.
31        (f)  This Act does not require that  a  mediator  have  a
32    special qualification by background or profession.
33        (g)  A   mediator   must   be   impartial,  unless  after
 
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 1    disclosure of the facts required in subsections (a)  and  (b)
 2    to be disclosed, the parties agree otherwise.

 3        Section  10.  Participation  in mediation. An attorney or
 4    other  individual designated by a  party  may  accompany  the
 5    party  to  and  participate  in  a  mediation.  A  waiver  of
 6    participation given before the mediation may be rescinded.

 7        Section  11.  Relation to Electronic Signatures in Global
 8    and National Commerce Act.  This  Act  modifies,  limits,  or
 9    supersedes  the  federal  Electronic Signatures in Global and
10    National Commerce Act, 15 U.S.C. Section 7001  et  seq.,  but
11    this  Act does not modify, limit, or supersede Section 101(c)
12    of that Act or authorize electronic delivery of  any  of  the
13    notices described in Section 103(b) of that Act.

14        Section  12.  Uniformity of application and construction.
15    In applying and construing this Act,  consideration  must  be
16    given  to  the  need  to  promote  uniformity of the law with
17    respect to its subject matter among States that enact it.

18        Section 13. Severability clause. If any provision of this
19    Act or its application to any person or circumstance is  held
20    invalid,  the  invalidity does not affect other provisions or
21    applications of this Act which can be  given  effect  without
22    the  invalid  provision  or  application, and to this end the
23    provisions of this Act are severable.

24        Section  16.  Application  to  existing   agreements   or
25    referrals.
26        (a)  This  Act governs a mediation pursuant to a referral
27    or an agreement to mediate made on or after January 1, 2004.
28        (b)  On or after January 1, 2004,  this  Act  governs  an
29    agreement to mediate whenever made.
 
HB2146 Enrolled             -9-      LRB093 07999 LRD 08195 b
 1        Section  90.  The  Condominium Property Act is amended by
 2    changing Section 32 as follows:

 3        (765 ILCS 605/32)
 4        Sec.  32.  Alternate   dispute   resolution;   mediation;
 5    arbitration.
 6        (a)  The   declaration   or   bylaws   of  a  condominium
 7    association may require mediation or arbitration of  disputes
 8    in  which  the  matter  in controversy has either no specific
 9    monetary value or a value of $10,000 or less, other than  the
10    levying  and collection of assessments, or that arises out of
11    violations  of  the  declaration,  bylaws,   or   rules   and
12    regulations  of  the  condominium association.  A dispute not
13    required to be  mediated  or  arbitrated  by  an  association
14    pursuant  to its powers under this Section, that is submitted
15    to  mediation  or  arbitration  by  the  agreement   of   the
16    disputants, is also subject to this Section.
17        (b)  The  Illinois  Uniform  Arbitration Act shall govern
18    all arbitrations proceeding under this Section.
19        (b-5)  The  Uniform  Mediation  Act  shall   govern   all
20    mediations proceeding under this Section.
21        (c)  The  association  may require the disputants to bear
22    the costs of mediation or arbitration.
23    (Source: P.A. 89-41, eff. 6-23-95.)

24        Section 99. Effective date. This Act takes effect January
25    1, 2004.