State of Illinois
92nd General Assembly

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 1        AN ACT in relation to the certification of mediators

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

 4        Section 1.  Short title.  This Act may be  cited  as  the
 5    Mediator Certification Act.

 6        Section 5. Findings and intent.
 7        (a)  The  General Assembly finds that mediation is a form
 8    of alternative dispute resolution with considerable potential
 9    for reducing the number of cases currently on the dockets  of
10    Illinois  courts and administrative agencies and providing an
11    economic saving to Illinois taxpayers in doing so.
12        (b) The General Assembly further finds that mediation  is
13    a  process  based upon the principle of self-determination by
14    the parties inasmuch as it  allows  parties  the  freedom  to
15    determine the outcomes to their own disputes in ways that are
16    very  likely  to  satisfy  all  parties involved and have the
17    highest likelihood of long-term success.
18        (c) The General Assembly further finds that  the  absence
19    of  uniform  regulatory guidelines related to the practice of
20    mediation has had or will have a deleterious effect on    the
21    practice  of mediation in general and that uniform regulatory
22    guidelines are in the best  interest of the practitioners of,
23    and the participants in, the mediation process.
24        (d) Finally, the General Assembly finds that the citizens
25    of  Illinois  are  best  protected  and   assisted   by   the
26    promulgation  of  guidelines  establishing  minimum  training
27    requirements,  procedural  rules, and ethical obligations for
28    the practice of mediation.

29        Section 15. Construction; application of Act.   This  Act
30    shall  be  liberally  construed    and applied to promote the
                            -2-                LRB9206434ACpc
 1    following purposes:
 2             (1) ensuring that individuals who are referred to or
 3        seek mediation of civil matters in the State of  Illinois
 4        as  an  alternative  to fully litigating such claims have
 5        access to competent mediation service providers;
 6             (2) ensuring that judges or others who seek to refer
 7        civil  matters to mediation may  do  so  with  confidence
 8        that  those  who  perform mediation services as certified
 9        mediators do so consistent with certain ethical rules and
10        procedural  guidelines;
11             (3) ensuring  that  individuals  who  seek  mediator
12        certification  have  uniform and clearly defined practice
13        obligations and privileges that enhance  the  credibility
14        of the profession and provide the basis for responding to
15        mediator misconduct; and
16             (4)  ensuring that the utilization of mediation as a
17        method of dispute resolution in civil matters is promoted
18        and provided in a uniform manner throughout the  State of
19        Illinois.

20        Section 20.  Definitions.  As used in this Act:
21        "Mediation" means a  non-adjudicatory,  non-binding,  and
22    cooperative  process  for  privately resolving legal disputes
23    with the assistance of a trained, neutral  third-party  whose
24    role  is  to  promote  communication  between  parties to the
25    dispute and to assist in the  negotiation  of  the  terms  of
26    resolution of that dispute.  "Mediation" as defined herein is
27    not the practice of law.
28        "Court-annexed   mediation"  means  a  mediation  process
29    provided by a judicial  circuit consistent with  local  rules
30    or  the  adoption  of these rules to effectuate court-ordered
31    mediation in the absence of local rules.
32        "Mediator" means one engaged in the practice of mediation
33    regardless of whether the mediation is done for profit.
                            -3-                LRB9206434ACpc
 1        "Department"  means  the   Department   of   Professional
 2    Regulation.
 3        "Director" means the Director of Professional Regulation.

 4        Section  25.   Exemptions.   This  Act  does not cover or
 5    pertain to the following activities:
 6             (1) efforts  by  a  sitting  judge,  magistrate,  or
 7        hearing officer in his or her official, judicial capacity
 8        to  mediate  or  facilitate the resolution of any matter,
 9        whether criminal or civil;
10             (2) direct negotiation  between  the  parties  to  a
11        dispute, whether through counsel or not, when a certified
12        mediator is not a participant in said negotiation;
13             (3)    other   non-mediation   alternative   dispute
14        resolution  processes  including,  but  not  limited  to,
15        arbitration, the summary jury trial, and the mini-trial.

16        Section 30.  Scope of application.
17        (a) This Act applies to the following:
18             (1) all  persons  wishing  to  use  the  designation
19        "certified  mediator" in the State of Illinois including,
20        but not limited to, those practicing mediation as  herein
21        defined,  privately  or  in court-annexed settings unless
22        the term "certified" is permitted under local rule; and
23             (2) the provision of any process called or  referred
24        to  as  "mediation" as herein defined, and when performed
25        by one using the  title  "certified  mediator",  used  to
26        resolve  claims, whether such claims have been filed in a
27        court of law or not and whether such service is  provided
28        privately or through a court-annexed entity;
29        (b)  Nothing in this Act shall be construed as preventing
30    or restricting the practice, services, or activities  of  any
31    person  licensed or registered in this State by any other law
32    in the profession or  occupation  for  which  he  or  she  is
                            -4-                LRB9206434ACpc
 1    licensed or registered.
 2        (c)  Nothing in this Act shall be construed as preventing
 3    or restricting the practice, services, or activities  of  any
 4    person  pursuing  a  course  of  study leading to a degree or
 5    certificate in mediation at an accredited or approved program
 6    if such activities and services constitute a part of a course
 7    of study and if such person is designated  by  a  title  that
 8    clearly indicates his or her status as a student or trainee.

 9        Section 35.  Administration of certification.
10        (a)  The  Department  of  Professional  Regulation  shall
11    exercise  the  powers  and  duties  prescribed  by  the Civil
12    Administrative Code of Illinois  for  the  administration  of
13    certification and shall exercise such other powers and duties
14    necessary   for   effectuating   the  purposes  of  this  Act
15    including, but not limited to, the obligation to  maintain  a
16    continuously   current   and  complete  roster  of  certified
17    mediators.
18        (b) The Director may promulgate rules consistent with the
19    provisions of this Act for the administration and enforcement
20    thereof, and for the payment of  fees  associated  therewith,
21    and  may  prescribe  forms that shall be issued in connection
22    therewith.
23        (c) The Department may at any time seek advice and expert
24    knowledge on any  matter relating to  the  administration  of
25    this Act.

26        Section 40.  Mediator certification.
27        (a)  To obtain certification as a mediator, a person must
28    do all of the following:
29             (1)  submit  an  application  as  designed  by   the
30        Department   of   Professional  Regulation,  which  shall
31        require such  information  as  in  the  judgment  of  the
32        Department  will  enable  the  Department  to pass on the
                            -5-                LRB9206434ACpc
 1        qualifications of the applicant for certification;
 2             (2) complete a baccalaureate  of  arts  or  sciences
 3        degree at an accredited  college or university;
 4             (3)  complete not fewer than 40 hours of specialized
 5        training in mediation  as described in this Act; and
 6             (4)  adhere  to  the  ethical  obligations  of   the
 7        practice of mediation as  described in this Act;
 8        (b) A person who is currently practicing mediation on the
 9    effective date of this Act will be considered certified under
10    this  Act if he or she submits an application as described in
11    this Section and pays the certification fee.
12        (c) A person certified by local circuit court rule on the
13    effective date of this Act will be considered certified under
14    this Act if he or she submits an application as described  in
15    this Section and pays the certification fee.
16        (d)  The   expiration   date   of  certifications  issued
17    pursuant to this Act shall be 2 years from the date of  issue
18    and  shall be renewed upon submission of the required fee and
19    the completion of those duties described  in  Section  50  of
20    this Act.
21        (e)  A  certified  mediator  who has permitted his or her
22    certification  to  expire  or  who  has  had   his   or   her
23    certification  placed  on inactive status may have his or her
24    certification  restored  by   making   application   to   the
25    Department  and  filing proof acceptable to the Department of
26    completion  of  the   requirements   of   certification   and
27    continuing  certification.
28        (f)  In  the  event a formerly certified mediator has had
29    his or her mediator certification revoked,  that  person  may
30    apply to the Department for recertification not sooner than 3
31    years   after   revocation  and  consistent  with  procedures
32    established by the Department.

33        Section 45.  Mediation training.
                            -6-                LRB9206434ACpc
 1        (a) The  training  any  individual  seeking  to  use  the
 2    designation  "certified mediator" must complete shall provide
 3    instruction in all of the following:
 4             (1) The nature and extent of the preparation and the
 5        general procedures engaged in by a mediator prior to  the
 6        mediation conference.
 7             (2)  The  general  procedures normally followed in a
 8        mediation conference.
 9             (3) The ethical obligations attendant to practice as
10        a mediator.
11             (4) Negotiation skills  sufficient  to  prepare  the
12        mediator  to provide meaningful assistance to the parties
13        in the course of the mediation conference including,  but
14        not limited to, identifying and managing power imbalances
15        and  refining  and reconfiguring offers and counteroffers
16        consistent with party interests and  needs.
17             (5) Communication skills sufficient to  prepare  the
18        mediator  to provide meaningful assistance to the parties
19        in the course of the mediation conference including,  but
20        not  limited  to,  the  ability  to  use  clear,  neutral
21        language  to  frame  facts  and  issues  efficiently,  to
22        control  the  process without coercion, and to assist the
23        parties   to   analyze   suggested   settlement   options
24        thoroughly and effectively.
25             (6) The Illinois judicial system and  general  rules
26        of  civil procedure.  This  portion of the training shall
27        be conducted by a licensed Illinois attorney or certified
28        mediator.
29             (7) Resources, both public and private, available to
30        parties involved in a variety of civil disputes to  which
31        those parties may be referred for further assistance and
32        support.
33        (b)  The  training  any  individual  seeking  to  use the
34    designation  "certified  mediator"  must  complete   may   be
                            -7-                LRB9206434ACpc
 1    provided by any of the following:
 2             (1) a person certified as a mediator in the State of
 3        Illinois pursuant to this Act;
 4             (2)   an  entity,  for  profit  or  not,  delivering
 5        training through one or more certified mediators;
 6             (3) a certified mediator at an accredited college or
 7        university at the undergraduate, graduate, post-graduate,
 8        or certificate level;
 9             (4) a bar-related training program in Illinois;
10             (5) the National Judicial College; or
11             (6) such other entities as the Department may,  from
12        time to time,  determine are suitable.

13        Section   50.    Continuing  training  in  mediation.   A
14    certified mediator has an obligation to maintain  and  refine
15    his  or her professional skills.  To remain in good  standing
16    and be permitted to use the designation "certified  mediator"
17    in  a  continuing  fashion,  an  individual  must (i) certify
18    completion of a minimum of 15 hours of advanced  mediation or
19    other related training or (ii) certify self-study or research
20    leading to tangible professional accomplishment, for  example
21    to the publication of an article or paper within the field of
22    mediation,   during  each  2-year  period  following  initial
23    certification under this  Act.

24        Section 55.  Obligations of the certified mediator  prior
25    to the mediation conference. Prior to commencing to mediate a
26    matter, a certified mediator shall do all of the following:
27             (1)  Inform  the parties of the fees associated with
28        mediation, if any.
29             (2) Advise the parties that the mediator  does  not,
30        and  cannot,  represent  either of the parties on this or
31        any related matter.
32             (3) Advise the parties that the mediator  does  not,
                            -8-                LRB9206434ACpc
 1        and cannot, provide therapy or counseling to any party.
 2             (4)  Advise the parties that representation by legal
 3        counsel throughout the mediation  process  is  encouraged
 4        and   that   parties  are  individually  responsible  for
 5        retaining counsel when and if they determine that counsel
 6        is necessary.
 7             (5)  Disclose  any  previous  relationship,  whether
 8        business or personal, with any party or attorney involved
 9        in the dispute subject to mediation.
10             (6) Define the process of mediation,  including  but
11        not   limited  to  the  procedural  steps  undertaken  in
12        mediation and the  privilege  afforded  the  mediator  in
13        mediation.
14             (7) Be prepared to describe for the parties at their
15        request   all   training   and  professional  preparation
16        undertaken by the mediator to achieve certification as  a
17        mediator.

18        Section 60. The mediation process.
19        (a)   The  mediation  process  provided  by  a  certified
20    mediator should consist, under normal circumstances,  of  the
21    following procedures:
22             (1)  A mediator opening statement.  The mediator may
23        provide a statement describing the process in  which  the
24        parties  will participate, including, but not limited to,
25        (i) the role of the mediator, (ii)  the  obligations,  if
26        any,  of  the  parties  participating  in  the  mediation
27        conference,  (iii) the procedural steps the mediator will
28        follow in the mediation conference, and (iv)the level and
29        nature of the confidentiality the parties are entitled to
30        expect in the mediation process.
31             (2) The parties' opening statements.  The parties or
32        their attorneys may, at  the  request  of  the  mediator,
33        provide  a  summary  of  the  dispute  including,  at the
                            -9-                LRB9206434ACpc
 1        parties' discretion, relevant facts, law,  and  suggested
 2        outcomes.
 3             (3)   The   negotiation.    The  parties  and  their
 4        attorneys may  exchange  further  information,  including
 5        offers  and  counteroffers,  in  a  good  faith effort to
 6        resolve some or all of  the  issues  outstanding  in  the
 7        dispute.
 8             (4)  Caucuses.   The mediator may elect at any point
 9        in the mediation process to meet privately with  each  of
10        the  parties  to discuss further, and with greater levels
11        of disclosure, settlement of some or all  of  the  issues
12        outstanding in the dispute.
13             (5)  A  conclusion.   The  mediator  may  assist the
14        parties in refining settlement options  and  reaching  an
15        agreement resolving some or all of the issues outstanding
16        in the dispute.
17        (b)  The mediator may assist in the creation of a written
18    document reflecting the proposed settlement  of  the  dispute
19    subject to subsection (c) of Section 80.
20        (c)  An agreement reached in mediation and signed by both
21    parties at  or  following  the  mediation  conference  shall,
22    unless  otherwise  agreed  by  the  parties, be treated as an
23    enforceable agreement under the laws of  this  State  in  the
24    same  manner  as  any  other  contract.   Upon request of the
25    parties, a court possessing jurisdiction over the dispute may
26    create an order  or  decree  incorporating  the  terms  of  a
27    written agreement reached in  mediation.
28        (d)  With the exception of privileged communications, the
29    rules of evidence do  not  apply  to  mediation;  documentary
30    evidence  may be offered in the mediation conference, subject
31    to  the  approval  of  the  certified  mediator,  to  support
32    assertions made by parties therein.
33        (e) To the extent possible, parties  participating  in  a
34    mediation  proceeding  should endeavor to engage in discovery
                            -10-               LRB9206434ACpc
 1    cooperatively toward the development of information necessary
 2    to facilitate the mediation process.   By  agreement  of  the
 3    parties,   discovery   may   be  deferred  completely  during
 4    mediation.

 5        Section 65.  The mediation privilege.
 6        (a) Communications made  during  a  mediation  conference
 7    shall be privileged and confidential.
 8        (b)  No  subpoena for testimony or request for discovery,
 9    whether written or oral, made as a result of participation in
10    or preparation  for  the  mediation  conference  shall  issue
11    against a certified mediator without prior court order.
12        (c)  The confidentiality privilege afforded the certified
13    mediator in this Section may not be  waived  by  the  parties
14    individually   or  in  concert  over  the  objection  of  the
15    certified mediator.
16        (d)  An  objection  to  the  obtaining  of  testimony  or
17    physical evidence from  mediation may be made by any party or
18    by the certified mediator.
19        (e) Any party seeking to  obtain  testimony  or  evidence
20    from  a  certified mediator  relating to a matter mediated by
21    that  certified  mediator  shall  be  responsible   for   all
22    attorney's  fees  and  costs  associated  with  defending the
23    mediator's assertion  of  the  privilege  described  in  this
24    Section  when  that  privilege  is  properly  asserted by the
25    certified mediator.
26        (f) Each party involved in the mediation conference has a
27    privilege to refuse to disclose, and to  prevent  any  person
28    present   at   the   mediation   conference  from  disclosing
29    communications made during the mediation conference except as
30    stated in subsection (k) of this Section and in Section 75.
31        (g) All oral or written  communications  in  a  mediation
32    conference,  other  than  an executed settlement agreement or
33    memorandum  of   agreement,   shall   be   confidential   and
                            -11-               LRB9206434ACpc
 1    inadmissible  as evidence and not subject to discovery in any
 2    litigation, arbitration, or other proceeding  including,  but
 3    not  limited  to,  subsequent  adjudication  of the matter in
 4    question.
 5        (h) Evidence of conduct in  the  course  of  a  mediation
 6    conference shall be confidential and inadmissible as evidence
 7    and  not subject to discovery in any litigation, arbitration,
 8    or other proceeding including, but not limited to, subsequent
 9    adjudication of the matter in question.
10        (i) Mediation is a settlement negotiation and  consistent
11    with  other  rules,  both  State  and  federal regarding such
12    proceedings, evidence of compromise or  attempted  compromise
13    is  not admissible or subject to discovery in any litigation,
14    arbitration, or other proceeding including, but not  limited,
15    to subsequent adjudication of the matter in question.
16        (j) Nothing in this Section shall be construed to require
17    the  exclusion  of evidence otherwise discoverable because it
18    was presented in the course of a mediation conference.
19        (k) Nothing in this Section shall be construed to require
20    the exclusion of evidence  offered  to  demonstrate  mediator
21    misconduct  or  negligence  in  an  action  for civil damages
22    against a mediator or an  action  seeking  an  administrative
23    remedy  against  a  mediator  or  to  defend  against such an
24    action.
25        (l) Nothing in this Section shall be construed to prevent
26    the  disclosure  of  information  revealed  in  a   mediation
27    conference  to  the  extent it appears necessary to prevent a
28    participant in the mediation conference  from  committing  an
29    act that would result in death or serious bodily harm.
30        (m)  The  use  of  attorney work product or disclosure of
31    privileged communications during mediation shall  not  result
32    in the waiver of the attorney work product or attorney/client
33    privileges.
                            -12-               LRB9206434ACpc
 1        Section  70.   Reporting  abuse  or  neglect of children.
 2    Nothing in this Act shall be construed to prevent a  mediator
 3    from  reporting  to  the  Department  of  Children and Family
 4    Services or other State or local law enforcement  agency  the
 5    mediator's suspicion or belief that a child has been injured,
 6    or  may  be  in  imminent  threat  of  injury, as a result of
 7    physical, mental, or emotional abuse or neglect provided that
 8    the mediator has advised the parties in writing prior to  the
 9    commencement  of  the  mediation conference of the mediator's
10    intention to make such  a  report  in  the  event  facts  are
11    revealed  during  the  mediation  conference  leading  to the
12    suspicion or belief that abuse as described above  has  taken
13    place.  A mediator who does not advise the parties in writing
14    prior to the  commencement of the mediation conference of his
15    or her intention to make such a report in the event facts are
16    revealed  during  the  mediation  conference  leading  to the
17    suspicion or belief that abuse as described above  has  taken
18    place may not report that suspicion or belief in any way, and
19    is  specifically privileged relative to proceedings under the
20    Juvenile Court Act of 1987 and the Abused and Neglected Child
21    Reporting Act.

22        Section 75.  Mediators also  licensed  to  practice  law.
23    The  practice  of  mediation  as  defined  in  this  Act when
24    performed by a non-attorney certified mediator shall  not  be
25    considered  the  unauthorized  practice  of  law provided the
26    certified mediator does not give legal advice.

27        Section  80.   Ethical  obligations  of   the   certified
28    mediator.
29        (a)  The  ethical  obligations  under  which  a certified
30    mediator may practice in another profession  do  not  control
31    the certified mediator when acting as a certified mediator.
32        (b)  Certified  mediators  shall  maintain  an  effective
                            -13-               LRB9206434ACpc
 1    system for identifying and avoiding conflicts of interest and
 2    the   appearance   of  partiality.   Specifically,  certified
 3    mediators shall avoid the following  situations  that  create
 4    the appearance of impropriety:
 5             (1)  A  relationship  with any company or individual
 6        the result of which would lead the reasonable  person  to
 7        believe  the  mediator  cannot  exercise  independent and
 8        unbiased judgment.
 9             (2) The certified mediator may not serve as a judge,
10        administrative law judge, hearing officer, or  magistrate
11        in  any  matter in which the person served as a certified
12        mediator.
13             (3) The certified mediator  may  not  represent  any
14        party in the same or any related matter.
15             (4)  The  certified  mediator also practicing in the
16        behavioral sciences shall not mediate for  an  individual
17        to  whom  counseling,  therapy, or psychotherapy services
18        have been rendered by that certified mediator.
19        (c) A certified mediator  shall  mediate  only  in  those
20    cases  where  the mediator possesses sufficient knowledge and
21    expertise to be effective.
22        (d) A certified mediator shall, prior to  and  throughout
23    the  mediation  conference, endeavor to assess the ability of
24    all participants to negotiate in an  informed  and  competent
25    manner.    The   mediator   shall   terminate  any  mediation
26    conference in which it is determined by the mediator that one
27    or more participants does not have or has ceased to have  the
28    ability to negotiate in an informed and competent manner.
29        (e)  A  certified mediator shall recognize that mediation
30    is based  on  the  principle  of  self-determination  by  the
31    parties.   Self-determination  is  a fundamental principle of
32    mediation.  It requires that the mediation process rely  upon
33    the  ability  of  the parties to reach a voluntary, uncoerced
34    agreement. Unless otherwise provided under local court  rule,
                            -14-               LRB9206434ACpc
 1    any party may withdraw from mediation at any time.

 2        Section  85.  Penalties.   An  individual  who  fails  to
 3    comply  with  the  provisions of this Act shall be subject to
 4    revocation   of   certification,   either   temporarily    or
 5    permanently,  and  such other penalties as the Department may
 6    deem appropriate.

 7        Section   90.    Misrepresentation.    Unless   otherwise
 8    provided under local court rule,  no  person  shall  use  the
 9    title  of  "certified mediator" or use or advertise any title
10    or description that conveys the impression that the person is
11    a certified mediator unless the  person  has  been  certified
12    under this Act.

13        Section  95.   Mediators  trained  in  a state other than
14    Illinois.
15        (a) Individuals who have completed training equivalent to
16    that described in this Act in another state may apply for and
17    shall be granted mediator certification in Illinois  provided
18    that  the  qualifications set forth in Section 40 of this Act
19    are also met.
20        (b) All individuals certified to mediate in Illinois  are
21    subject  to  the  provisions  of  this  Act when mediating in
22    Illinois whether trained, certified, licensed,  or  otherwise
23    regulated in any other state.
24        (c) Certification or licensing in another state does not,
25    through reciprocity, confer certified mediator status upon an
26    individual.

27        Section  100.   Fees.   The following fees are imposed by
28    this Act: (i) an initial, non-refundable $100 application fee
29    and (ii) a bi-annual, non-refundable renewal of certification
30    fee not to exceed $50.
                            -15-               LRB9206434ACpc
 1        Section 950.  The Regulatory Sunset  Act  is  amended  by
 2    adding Section 4.22 as follows:

 3        (5 ILCS 80/4.22 new)
 4        Sec.  4.22.   Act  repealed  on  January  1,  2012.   The
 5    following Act is repealed on January 1, 2012:
 6        The Mediator Certification Act.

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