Court Rules and Statutes

Outline of the Uniform Mediation Act - Illinois P. A. 93-0399

There is a privilege for a "mediation communication" [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]. (Sec. 4)

The Act applies to any of the mediations in which the mediation parties:

1. Are required to mediate or are referred to mediation by statute or rule or by a court or agency.
   
2. And the mediator agree to mediate in a record that indicates that mediation communications will be privileged against disclosure.
   
3. Use as a mediator a person who holds himself or herself out as a mediator. (Sec. 3 (a))
   

The Act does not apply to a mediation:

1. That relates to a collective bargaining agreement.
   
2. Conducted by a judge who might make a ruling on the case.
   
3. Conducted under the auspices of a primary or secondary school if all parties are students; or a correctional institution for youths if all parties are residents of it. (Sec. 3(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 nonpartv participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant. (Sec. 4)
   

The above privileges may be expressly waived by all parties to the mediation and:

1. It is expressly waived by (a) the mediator or (b) a nonparty participant, depending on whose privilege it is. (Sec. 5)
   
2. The parties agree in advance in a signed record or a record of proceeding that reflects agreement by the parties, that all or part of a mediation is not privileged. (Sec. 3(c))
   

A person is precluded from asserting a privilege:

1. If the person makes a representation about a mediation communication which prejudices another person in a proceeding, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
   
2. If the person intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity. (Sec. 5 (b) and (c))
   

There is no privilege for a mediation communication that is:

1. The agreement evidenced by a record signed by all parties to the agreement; (i.e., the agreement reached in mediation)
   
2. Available to the public under the Freedom of Information Act or made during a session that 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 or intentionally used to plan, attempt to commit, or to conceal an ongoing crime or ongoing criminal activity;
   
4. To prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator, mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
   
5. 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. (Sec. 6)
   

There is no privilege for a mediation communication under Sec. 4 if a court, administrative agency or arbitrator finds:

• After a hearing in camera
  
• The party seeking discovery or the proponent of the evidence shows
  
  • That the evidence is not otherwise available
    
  • And that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality
    
  • And that the mediation communication is sought in
    
    1. A felony
       
    2. A proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation. (Sec. 6 (b))
       
• Even if all of the above is found, the mediator may not be compelled to testify regarding claims regarding misconduct or malpractice of a party or representative of a party or regarding the contract. (Sec. 6 (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. (Sec. 4 (c))

In a report, a mediator may disclose only:

1. Whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;
   
2. A mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to an appropriate public agency;
   
3. A mediation communication not barred by this Act. (Sec. 7)
   

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. (Sec. 8)

Mediator's disclosure of conflicts of interest; background:

1. Before accepting a mediation, a person requested to serve as a mediator must make a reasonable inquiry to determine whether there are any known facts or relationships that might affect the impartiality of the mediator and must disclose these to the mediation parties as soon as is practical before accepting a mediation.
   
2. If a mediator learns a fact after accepting a mediation, [s]he must disclose it as soon as is practicable.
   
3. A mediation party may request and the mediator must disclose his or her qualifications.
   
4. This Act does not require a mediator to have any particular profession or background.
   
5. Unless otherwise agreed upon by the parties or necessary, a mediator must be impartial. (Sec. 9)

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. (Sec. 10)

Act effective January 2004.

Outline prepared by Roberta Fertel, J.D. '03, and Suzanne Schmitz. This outline should not substitute for your reading of the act and your attention to cases interpreting the Act.