Mediation Contracts – The Good and the Uncertain

Lawyers are often lured into the prospect of settlement by casually agreeing to sign off on mediation agreements proposed by either the mediator or the opposite counsel. The obvious purpose of mediation is to resolve disputes that would be costly with an unpredictable result. Settlements are good for both parties in that they save time and money.  Litigation alternatives are expensive and results are unknown.

However, the importance of mediation agreements stands out in the process. State law in Illinois governs some of the inner workings of mediations. The law is found under 710 ILCS 35/, which is the Illinois Uniform Mediation Act (IUMA).

One of the advantages of mediation is confidentiality. The confidentiality aspect of mediation is that a caucus with the just mediator and a party and counsel is a conference in confidence. This condition should be set out in the agreement.  The importance of the confidentiality of mediation is that settlement communications are inadmissible, both in federal and state courts. But there are distinct differences between confidentiality and privilege should the case not settle. 

The Illinois Uniform Mediation Act provides that communications between the parties and the mediator, whether it is in caucus or in a full party setting, is privileged, barring the admission of any such evidence at a court hearing.  Having a privilege clause in the mediation agreement is important because it better serves the parties to make sure that communications are not to be used in a future courtroom. The mediation contract should state that the mediation is governed by the Illinois law — the Uniform Mediation Act. 

On the other hand, confidentiality is different. The IUMA does allow for confidentiality by law, but the parties should be certain to include the language for it in the mediation agreement to the effect that the mediation itself should be held in confidence and that any of the communications between the parties and the mediator not be disclosed to anyone. That includes those outside of any future court hearings. Many defendants choose to request that the settlement terms be made confidential so that disclosure of the elements of the settlement not be relayed to any potential parties seeking redress from the same defendant.

The mediation agreement will set forth the details of what the mediator’s role will be in handling mediation sessions.  The agreement should also include the terms of payment of fees and costs that the mediator requires. Most important, it should state in the agreement that the mediator is neutral, if that is what the parties agreed to. Many mediators take the role of facilitator, literally in the middle, rather than casting forth opinions as to the legal and /or factual strengths and weaknesses of the case. 

Focus should also be on the mediator’s role in terms of whether he or she should be a consultant, a cheerleader, an educator or merely a neutral, letting the opposite sides work out their own solutions. 

Mediation itself tends to suggest that the case has the prospect of settlement. However, it is imperative that the details of mediation be spelled out clearly in the agreement and that both parties agree to its terms.  Even after a settlement, the parties may disagree on the terms. All those details, including how the settlement agreement will be executed, should be set forth in the mediation contract.

Robert Kreisman has successfully completed his coursework in Mediation Skills Training at Northwestern University’s School of Continuing Studies and offers his services for mediation and arbitration.  Robert Kreisman has been practicing trial litigation for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Des Plaines, Hinsdale, Wheaton, La Grange, Orland Park, Arlington Heights, Long Grove, Rolling Meadows, Palatine, Oak Lawn, Chicago (Roscoe Village, Beverly, Wicker Park, Logan Square), Inverness and Vernon Hills, Ill.

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