The mediation of cases involves opposing positions. A mediation session begins with a brief opening statement by the mediator laying out for the parties and lawyers that the process that is about to take place will remain confidential. The mediator in most settings will mention a few exceptions and explain confidentiality when the parties and their representatives meet in caucus, which is with the mediator in private.
Before the mediation session begins, attorneys would be wise to inform their clients exactly what the process is all about and the distinctions between the terms — confidentiality and privilege.
At the outset, and well before the day of mediation, the parties would be asked to review and sign the mediation agreement. Most mediation agreements contain language of confidentiality and references to privilege in outlining the mediation process.
Under Illinois’ Uniform Mediation Act (UMA), 710 ILCS 35/1, et seq., the act’s provisions are primarily dealing with privilege indicating that statements and materials made for the purpose of the mediation may not be used in a future courtroom proceeding, such as a trial or an arbitration or even a legislative hearing.
The obvious reason for privilege language in both the UMA and the mediation agreement is to encourage the parties at the mediation to be able to freely discuss aspects of the case that would otherwise be reserved for trial or arbitration or other evidentiary proceedings. The privilege in mediation can be waived or precluded. The UMA contains a number of exceptions to privilege such as communications that relate to threats of crime, professional misconduct, abuse of a disabled person or child or references to abandonment or neglect of a child or disabled person. Exceptions are obvious, but in practice rarely come up.
The important part in referring to the exceptions is that the clients and parties to mediation should know that there are exceptions to privilege before the mediation begins. Most of the exceptions are instinctive.
Confidentiality is a different thing. The UMA does not provide as much guidance as does its provisions for privilege. Section 8 of the UMA states, “Unless subject to the Open Meetings Act or the Freedom of Information Act, mediation communications are confidential to the extent agreed to by the parties or provided by other law or rule of this state.”
Illinois Supreme Court Rule 99 allows each judicial circuit in the state to set up a mediation program. Some of the local court rules blend privilege and confidentiality together and refer back to the UMA in doing that.
In Cook County Circuit Court Rule 20.07, relating to the law division mediation program, it provides that “All oral and written communications with a mediator at any time, other than executed settlement agreements, shall be deemed confidential and privileged in accordance with the provisions of the Uniform Mediation Act.” The Cook County Court Rule also states that there are exceptions to that, referring to “serious imminent harm” rather than of “bodily injury,” as is stated in the UMA.
On the other hand, the Cook County Rule 21.07 for the Chancery Division Mediation Program accounts for confidentiality but refers participants back to the UMA. In addition, both the Cook County Law Division and Chancery Division rules state that sharing any of the communications in mediation should be covered by the parties’ mediation agreement as well as the UMA.
Illinois also has an Illinois Not-For-Profit Dispute Resolution Center Act, 710 ILCS 20/1 et seq., which is specific for mediations done by the Center for Conflict Resolution. The acts states, “Any communication made during the resolution process by any participant, mediator or any other person present at the mediation shall be confidential.” That part of the act is found in §20/6 dealing with privilege.
There are many form mediation agreements that are circulated on the Internet and by local rules. Lawyers representing mediation parties should make sure that the written document covers privilege and confidentiality in a clear and concise way. Most important, attorneys representing parties in the mediation should explain to their clients the process of mediation with particular emphasis on privilege and confidentiality. In that way, neither the lawyers for the party nor the parties themselves would be surprised by any of the proceedings that may otherwise be sensitive because of issues in the case, but would be free to be discussed given the clear and concise agreement to make such communications privileged and confidential. This would only aid in reaching a reasonable and fair resolution and settlement, which is the purpose of the mediation.
Robert Kreisman of Kreisman Law Offices is accepting mediation cases for individuals, families and businesses. Robert Kreisman has been practicing civil litigation in Illinois and Cook County for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Hinsdale, Wheaton, Riverside, Rosemont, South Chicago, Wilmette, Winfield, Chicago (Hegewisch, Canaryville, Woodlawn, Lawndale, Wicker Park, Bucktown) and Prospect Heights, Ill.
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