|Public Act 100-0205|
|SB0067 Enrolled||LRB100 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:
This Act may be cited as the
Collaborative Process Act.
In this Act:
(1) "Collaborative process communication" means a
statement, whether oral or in a record, or verbal or nonverbal,
(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
(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
(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
(A) marriage, divorce, dissolution, annulment, legal
separation, and property distribution;
(B) significant decision making and parenting time of
(C) maintenance and child support;
(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
(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
(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.
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.
Collaborative process participation agreement;
(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.
Beginning and concluding the collaborative
(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
(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
(f) A party may terminate a collaborative process with or
(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
(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
(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
Proceedings pending before a court; status
(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
(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
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.
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
Disclosure of information.
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
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
(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.
Confidentiality of collaborative process
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.
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
(2) A nonparty participant may refuse to disclose, and
may prevent any other person from disclosing, a
collaborative process communication of the nonparty
(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
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
(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.
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
(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
(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
(b) The privileges under Section 55 for a collaborative
process communication do not apply to the extent that a
(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
(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
(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.
Authority of the Illinois Supreme Court.
Act is subject to the supervisory authority of the Illinois