Illinois General Assembly - Full Text of Public Act 093-0399
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Public Act 093-0399


 

Public Act 93-0399 of the 93rd General Assembly


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.

Effective Date: 01/01/04