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92_HB1971
LRB9206434ACpc
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
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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.
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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
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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
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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.
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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
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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,
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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
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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
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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
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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.
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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
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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,
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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.
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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.