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Public Act 100-0205


 

Public Act 0205 100TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 100-0205
 
SB0067 EnrolledLRB100 00354 HEP 10358 b

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

Effective Date: 1/1/2018