Illinois General Assembly - Full Text of SB0067
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Full Text of SB0067  100th General Assembly




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1    AN ACT concerning alternative dispute resolution.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Collaborative Process Act.
6    Section 5. Definitions. In this Act:
7    (1) "Collaborative process communication" means a
8statement, whether oral or in a record, or verbal or nonverbal,
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
16a written agreement by persons acting with informed consent to
17participate in a collaborative process, in which the persons
18agree to discharge their collaborative process lawyer and law
19firm if the collaborative process fails.
20    (3) "Collaborative process" means a procedure intended to
21resolve a collaborative process matter without intervention by
22a 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
4represents a party in a collaborative process and helps carry
5out the process of the agreement, but is not a party to the
7    (5) "Collaborative process matter" means a dispute,
8transaction, claim, problem, or issue for resolution,
9including a dispute, claim, or issue in a proceeding, which is
10described in a collaborative process participation agreement
11and arises under the family or domestic relations law of this
12State, 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
22dispute, transaction, claim, problem, or issue that: (i) is the
23subject of a pending action under the Juvenile Court Act of
241987; (ii) is under investigation by the Illinois Department of
25Children and Family Services pursuant to the Abused and
26Neglected Child Reporting Act; or (iii) resulted in a currently



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1open case with the Illinois Department of Children and Family
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
11party and the party's collaborative process lawyer, that
12participates in a collaborative process.
13    (8) "Party" means a person other than a collaborative
14process lawyer that signs a collaborative process
15participation agreement and whose consent is necessary to
16resolve a collaborative process matter.
17    (9) "Person" means an individual, corporation, business
18trust, estate, trust, partnership, limited liability company,
19association, joint venture, public corporation, government or
20governmental subdivision, agency, or instrumentality, or any
21other legal or commercial entity.
22    (10) "Proceeding" means a judicial or other adjudicative
23process before a court, including related prehearing and
24post-hearing motions, conferences, and discovery.
25    (11) "Prospective party" means a person that discusses with
26a prospective collaborative process lawyer the possibility of



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1signing a collaborative process participation agreement.
2    (12) "Record" means information that is inscribed on a
3tangible medium or that is stored in an electronic or other
4medium and is retrievable in perceivable form.
5    (13) "Related to a collaborative process matter" means
6involving the same parties, transaction or occurrence, nucleus
7of operative fact, dispute, claim, or issue as the
8collaborative process matter.
9    (14) "Sign" means, with present intent to authenticate or
10adopt 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
15collaborative process participation agreement that meets the
16requirements of Section 15 signed on or after the effective
17date of this Act.
18    Section 15. Collaborative process participation agreement;
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
12participation agreement additional provisions not inconsistent
13with this Act.
14    Section 20. Beginning and concluding the collaborative
16    (a) A collaborative process begins when the parties sign a
17collaborative process participation agreement.
18    (b) A court may not order a party to participate in a
19collaborative 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
24prompt notice to all other parties in a record of a discharge
25or withdrawal.
26    (f) A party may terminate a collaborative process with or



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1without cause.
2    (g) A collaborative process continues, despite the
3discharge or withdrawal of a collaborative process lawyer, if
4not later than 30 days after the date that the notice of the
5discharge or withdrawal of a collaborative process lawyer
6required 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
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
19consent of the parties, a party requests a court to approve a
20resolution of the collaborative process matter or any part
21thereof as evidenced by a signed record.
22    (i) A collaborative process participation agreement may
23provide additional methods of concluding a collaborative
25    Section 25. Proceedings pending before a court; status



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2    (a) Persons in a proceeding pending before a court may sign
3a collaborative process participation agreement to seek to
4resolve a collaborative process matter related to the
5proceeding. The parties shall file promptly with the court a
6notice of the agreement after it is signed. Subject to
7subsection (c) and Sections 30 and 35, the filing operates as
8an application for a stay of the proceeding.
9    (b) The parties shall file promptly with the court notice
10in a record when a collaborative process concludes. The stay of
11the proceeding, if granted, under subsection (a) is lifted when
12the notice is filed. The notice may not specify any reason for
13termination of the process.
14    (c) A court in which a proceeding is stayed under
15subsection (a) may require the parties and collaborative
16process lawyers to provide a status report on the collaborative
17process and the proceeding. A status report may include only
18information on: (i) whether the process is ongoing or
19concluded; or (ii) the anticipated duration of the
20collaborative process.
21    (d) A court may not consider a communication made in
22violation of subsection (c).
23    (e) A court shall provide parties notice and an opportunity
24to be heard before dismissing a proceeding in which a notice of
25collaborative process is filed based on delay or failure to



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1    Section 30. Emergency order. Nothing in the collaborative
2process may prohibit a party from seeking an emergency order to
3protect the health, safety, welfare, or interest of a party or
4person identified as protected in Section 201 of the Illinois
5Domestic Violence Act of 1986, or may prohibit a party or
6nonparty participant from making a report of abuse, neglect,
7abandonment, or exploitation of a child or adult under the law
8of this State.
9    Section 35. Approval of agreement by the court. A court may
10approve an agreement resulting from a collaborative process. An
11agreement resulting from the collaborative process shall be
12presented to the court for approval if the agreement is to be
14    Section 40. Disclosure of information. Voluntary informal
15disclosure of information related to a matter is a defining
16characteristic of the collaborative process. Except as
17provided by law other than this Act, during the collaborative
18process, on the request of another party, a party shall make
19timely, full, candid, and informal disclosure of information
20related to the collaborative process matter without formal
21discovery. A party also shall update promptly previously
22disclosed information that has materially changed. The parties
23may define the scope of disclosure during the collaborative



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2    Section 45. Standards of professional responsibility and
3mandatory reporting not affected. This Act does not affect:
4        (1) the professional responsibility obligations and
5    standards applicable to a lawyer or other licensed
6    professional; or
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.
10    Section 50. Confidentiality of collaborative process
11communication. A collaborative process communication is
12confidential to the extent agreed by the parties in a signed
13record or as provided by law of this State other than this Act.
14    Section 55. Privilege against disclosure for collaborative
15process communication; admissibility; discovery.
16    (a) Subject to Sections 60 and 65, a collaborative process
17communication is privileged under subsection (b), is not
18subject to discovery, and is not admissible in evidence.
19    (b) In a proceeding, the following privileges apply:
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.
4    (c) Evidence or information that is otherwise admissible or
5subject to discovery does not become inadmissible or protected
6from discovery solely because of its disclosure or use in a
7collaborative process.
8    Section 60. Waiver and preclusion of privilege.
9    (a) A privilege under Section 55 may be waived in a record
10or orally during a proceeding if it is expressly waived by all
11parties and, in the case of the privilege of a nonparty
12participant, it is also expressly waived by the nonparty
14    (b) A person that makes a disclosure or representation
15about a collaborative process communication which prejudices
16another person in a proceeding may not assert a privilege under
17Section 55, but this preclusion applies only to the extent
18necessary for the person prejudiced to respond to the
19disclosure or representation.
20    Section 65. Limits of privilege.
21    (a) There is no privilege under Section 55 for a
22collaborative 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
14process communication do not apply to the extent that a
15communication 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
22finds, after a hearing in camera, that the party seeking
23discovery or the proponent of the evidence has shown the
24evidence is not otherwise available, the need for the evidence
25substantially outweighs the interest in protecting
26confidentiality, and the collaborative process communication



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1is 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
9an exception under subsection (b) or (c), only the part of the
10communication necessary for the application of the exception
11may be disclosed or admitted.
12    (e) Disclosure or admission of evidence excepted from the
13privilege under subsection (b) or (c) does not make the
14evidence or any other collaborative process communication
15discoverable or admissible for any other purpose.
16    (f) The privileges under Section 55 do not apply if the
17parties agree in advance in a signed record, or if a record of
18a proceeding reflects agreement by the parties, that all or
19part of a collaborative process is not privileged. This
20subsection does not apply to a collaborative process
21communication made by a person that did not receive actual
22notice of the agreement before the communication was made.
23    Section 70. Authority of the Illinois Supreme Court. This
24Act is subject to the supervisory authority of the Illinois
25Supreme Court.