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90_SB0835
New Act
5 ILCS 80/4.18 new
Creates the Divorce Mediator Certification Act. Provides
that a person may not hold himself out as a certified divorce
mediator unless he or she has been certified by the committee
on dispute resolution created by the Act. Sets training and
experience requirements for certification as a divorce
mediator. Requires that information disclosed in mediation
sessions remain confidential with certain exceptions.
LRB9003343LDdv
LRB9003343LDdv
1 AN ACT in relation to the certification of divorce
2 mediators.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be cited as the
6 Divorce Mediator Certification Act.
7 Section 5. Divorce mediator certification.
8 (a) On or after July 1, 1998, a person may not hold out
9 himself or herself as a "certified divorce mediator" unless
10 he or she has been certified by the committee on dispute
11 resolution created under this Act.
12 (b) To obtain certification as a divorce mediator, a
13 person must do all of the following:
14 (1) Complete an application to become a candidate
15 for certification as a mediator.
16 (2) Complete at least 40 hours of specialized
17 mediation training conducted in a program approved by the
18 committee on dispute resolution in accordance with
19 administrative guidelines established in this Act.
20 (3) Adhere to ethical standards of the mediator's
21 profession.
22 (4) Maintain appropriate liability insurance
23 specifically covering the activities of the individual as
24 a mediator.
25 Section 10. Committee on dispute resolution.
26 (a) An advisory committee shall be appointed by the
27 Governor and shall consist of the following members:
28 (1) Four representatives of professional mediation
29 associations, including 2 from the Alternative Dispute
30 Resolution Section of the Illinois State Bar Association.
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1 (2) Three representatives of institutions that
2 offer mediation education.
3 (3) Two representatives of mediation service
4 providers, one nonprofit and one for profit.
5 (4) One representative of mediation trainers.
6 (5) One consumer representative.
7 (6) One representative designated by the Director
8 of Professional Regulation.
9 (b) The advisory committee shall designate a single
10 mediator certifying organization no later than July 1, 1998.
11 (c) The advisory committee shall meet at least annually
12 and shall report to the Director of Professional Regulation
13 after each meeting. Members of the committee shall not
14 receive compensation, but shall be reimbursed for all
15 necessary expenses.
16 Section 15. Application for certification.
17 (a) A person may file with the mediator certifying
18 organization designated under Section 10(b) an application to
19 obtain certification as a divorce mediator, which shall
20 consist of a statement concerning the candidate's training
21 and experience in mediation.
22 (b) The mediator certifying organization shall analyze
23 the information contained in the application and assign each
24 candidate to one of the following 3 tracks:
25 (1) The first track shall consist of persons with
26 no previous experience or training in mediation.
27 (2) The second track shall consist of persons with
28 some experience, training, or both, in mediation, but who
29 are required to enhance this experience, training, or
30 both, prior to the performance evaluation required by
31 Section 30.
32 (3) The third track shall consist of persons with
33 all the necessary training and experience to be eligible
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1 to engage in a performance evaluation as provided in this
2 Act.
3 (c) Training and experience claimed by a candidate shall
4 be specifically identified in the application and shall
5 include the date and time that the training was completed and
6 when the experience was acquired. This previous training and
7 experience shall be subject to written verification by the
8 mediator certifying organization designated under Section
9 10(b).
10 (d) On the basis of an analysis of the candidate's
11 application, the mediator certifying organization shall place
12 the candidate in one of the 3 tracks and shall prescribe the
13 training and experience that the person is required to
14 receive, if any, to be eligible to participate in a
15 performance evaluation.
16 Section 20. Training requirement. To obtain
17 certification as a divorce mediator, an applicant shall
18 complete training that shall consist of a minimum of 20 hours
19 of lecture and discussion of all of the following topics:
20 (1) The history of dispute resolution as a problem
21 solving technique and its relationship to the traditional
22 justice system.
23 (2) An overview of the structure of the Illinois
24 justice system and the traditional methods of processing
25 civil and criminal cases.
26 (3) The structure, design, practice, and theory of
27 dispute resolution proceedings and services, including
28 the varying roles, functions, and responsibilities of
29 neutral persons and the distinction between binding and
30 nonbinding processes.
31 (4) Communication skills and techniques, including
32 developing opening statements, building trust, gathering
33 facts, framing issues, taking notes, empowerment tactics,
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1 and effective listening and clarification skills.
2 (5) Problem identification and disagreement
3 management skills, including instruction in the
4 establishment of priorities and areas of agreement and
5 disagreement, and the management of special problems that
6 threaten the process.
7 (6) Techniques for achieving agreement or
8 settlement, including instruction in creating a climate
9 conducive to resolution, identifying options, reaching
10 consensus, and working toward agreement.
11 (7) General review of fact patterns present in
12 typical disputes, including marital relations cases.
13 (8) Administrative and intake skills related to
14 dispute resolution services, including completion of
15 paperwork involved in handling and tracking cases.
16 (9) The role and participation of attorneys and
17 witnesses in dispute resolution proceedings.
18 Section 25. Experience requirement. To become certified
19 as a divorce mediator, an applicant shall obtain at least 20
20 hours of real or simulated practical experience in mediation,
21 including role-playing or simulated disputes, observation of
22 actual intake and case management procedures, and mediation
23 sessions that are supervised by a dispute resolution program
24 or other organization that satisfies the requirements of this
25 Act. The experience requirement shall also include a
26 personal assessment and evaluation of the candidate by the
27 mediator certifying organization designated under Section
28 10(b).
29 Section 30. Performance evaluation.
30 (a) Prior to being awarded a divorce mediator's
31 certificate, a candidate must satisfactorily complete a
32 performance evaluation conducted by the mediator certifying
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1 organization designated under Section 10(b) that assesses the
2 specific skills and techniques utilized by the candidate.
3 (b) The performance evaluation shall consist of engaging
4 in at least one real or simulated mediation, conducted solely
5 by the candidate, under the observation of 2 trained
6 evaluators who are experienced and certified mediators.
7 (c) The criteria for determining whether the candidate
8 has satisfactorily completed the performance evaluation shall
9 include but need not be limited to the following:
10 (1) personal interaction;
11 (2) tone of proceedings;
12 (3) process flow;
13 (4) opening statement;
14 (5) facilitating position statements;
15 (6) coordinating exchange and conflict analysis;
16 (7) managing negotiation;
17 (8) generating options with parties;
18 (9) closure;
19 (10) ethical behavior;
20 (11) empowerment of clients;
21 (12) communication;
22 (13) creating empathy;
23 (14) clarification;
24 (15) organization of issues;
25 (16) active listening;
26 (17) neutral language; and
27 (18) strategy planning.
28 (d) A candidate who fails to satisfactorily complete the
29 performance evaluation after a second attempt shall be
30 assigned to a remedial program by the mediator certifying
31 organization and may not take another performance evaluation
32 until the remedial program is satisfactorily completed.
33 Section 35. Completion of certification requirements.
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1 Upon completion of the requirements for certification as a
2 mediator, the mediation certification organization shall
3 issue a certificate and a distinguishable stamp that includes
4 the abbreviation "CM" ("Certified Mediator").
5 Section 37. Fees. The fees imposed under this Act are
6 as follows and are not refundable:
7 (a) The fee for original application for certification
8 as a certified divorce mediator is $500.
9 (b) The annual fee for renewal of certification as a
10 certified divorce mediator is $100.
11 Section 40. Mediation; confidentiality of information
12 and documents.
13 (a) When the parties to a dispute choose to mediate the
14 dispute, the mediator shall not divulge information disclosed
15 to the mediator by the parties or by others in the course of
16 mediation. All records, reports, and other documents
17 developed for the mediation shall be confidential and
18 privileged.
19 (b) Communications made during a mediation may be
20 disclosed only:
21 (1) When all parties to the mediation agree, in
22 writing, to waive the confidentiality of the written
23 information;
24 (2) In a subsequent action between the mediator and
25 a party to the mediation for damages arising out of the
26 mediation;
27 (3) When statements, memoranda, materials, and
28 other tangible evidence are otherwise subject to
29 discovery and were not prepared specifically for and
30 actually used in the mediation;
31 (4) When the parties to the mediation are engaged
32 in litigation with a third party and the court determines
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1 that fairness to the third party requires that the fact
2 or substance of an agreement resulting from mediation be
3 disclosed; or
4 (5) When the disclosure reveals abuse or neglect of
5 a child by one of the parties.
6 (c) The mediator shall not be compelled to testify in
7 any proceeding, unless all parties to the mediation and the
8 mediator agree in writing.
9 Section 45. Duties of a mediator.
10 (a) A mediator appointed under this Act shall:
11 (1) inform the parties of the costs of mediation;
12 (2) advise the parties that the mediator does not
13 represent either or both of the parties;
14 (3) define and describe the process of mediation to
15 the parties;
16 (4) disclose the nature and extent of any
17 relationship with the parties and any personal,
18 financial, or other interest that could result in bias or
19 a conflict of interest;
20 (5) advise each of the parties to obtain
21 independent legal advice;
22 (6) allow only the parties to attend the mediation
23 sessions;
24 (7) disclose to the parties' attorneys any factual
25 documentation revealed during the mediation if, at the
26 end of the mediation process, the disclosure is agreed to
27 by both parties; and
28 (8) inform the parties of the extent to which
29 information obtained from and about the participants
30 through the mediation process is not privileged and may
31 be subject to disclosure.
32 (b) The divorce mediator shall make a written summary of
33 any understanding reached by the parties. A copy of the
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1 summary shall be provided to the parties and their attorneys,
2 if any. The divorce mediator shall advise each party in
3 writing to obtain legal assistance in drafting any agreement
4 or for reviewing any agreement drafted by the other party.
5 Any understanding reached by the parties as a result of
6 mediation shall not be binding upon the parties nor
7 admissible in court until it is reduced to writing, signed by
8 the parties and their attorneys, if any, and approved by the
9 court. If the parties are not represented by attorneys, the
10 mediator shall provide to the court or hearing officer the
11 written summary of any understanding signed by the parties,
12 which, if approved by the court or hearing officer, shall be
13 incorporated in the order of the court or hearing officer.
14 (c) The divorce mediator may act as a mediator in
15 subsequent disputes between the parties. However, the
16 mediator shall decline to act as attorney, counselor, or
17 psychotherapist for either party during or after the
18 mediation proceeding unless the subsequent representation,
19 counseling, or treatment is clearly distinct from the
20 mediation issues.
21 Section 50. Attorney-mediators.
22 (a) An attorney may act as a mediator for multiple
23 parties in a dispute if:
24 (1) the attorney-mediator clearly informs the
25 parties of the attorney-mediator's role as a mediator,
26 including the confidentiality of the process, and the
27 parties consent in writing to this arrangement;
28 (2) the attorney-mediator defines the legal issues
29 to the parties only in the presence of all parties to the
30 matter;
31 (3) the attorney-mediator advises and encourages
32 the parties to seek independent legal advice before the
33 parties execute any settlement agreement drafted by the
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1 attorney-mediator;
2 (4) the attorney-mediator has not represented one
3 of the parties beforehand in a matter that is the subject
4 of the mediation;
5 (5) the attorney-mediator does not act on behalf of
6 any party in court nor represent one party against the
7 other in any related matter. However, the
8 attorney-mediator may act as an attorney for a party
9 after the completion of the mediation process if the
10 subsequent representation is clearly distinct from the
11 mediated issues.
12 (b) An attorney-mediator may draft a settlement
13 agreement, but must advise and encourage the parties to seek
14 independent legal advice before executing it.
15 (c) An attorney-mediator shall withdraw as mediator if
16 either of the parties so requests, or if any of the
17 conditions stated in subsection (a) are no longer satisfied.
18 Upon withdrawal, the attorney-mediator shall not continue to
19 act in any capacity on behalf of either of the parties in the
20 matter that was the subject of the mediation.
21 (d) An attorney acting as a mediator is not the legal
22 representative of either of the parties and there is no
23 attorney-client relationship between the parties and the
24 attorney-mediator.
25 Section 195. The Regulatory Agency Sunset Act is amended
26 by adding Section 4.18 as follows:
27 (5 ILCS 80/4.18 new)
28 Sec. 4.18. Act repealed on January 1, 2008. The
29 following Act is repealed on January 1, 2008:
30 The Divorce Mediator Certification Act.