Mediation is a process in which parties involved in a dispute voluntarily agree to engage in negotiations that are conducted by a neutral third party. That neutral third party is called a mediator.
The Illinois Uniform Mediation Act is found at 710 ILCS 35/1 et seq. This Act provides certain rights and protections for the mediation process and the persons participating in mediation.
The act begins by defining “mediation as a process in which a mediator facilitates communications and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute”. Therefore, the Act could be interpreted to cover many informal situations where a person is assisting the parties in reaching an agreement. It does not apply to collective bargaining situations, a mediation conducted by a judge who might make a ruling on a case, or most mediations relating to school students.
Probably the most important sections of the Act are those that protect the parties from any disclosure of communications made during the mediation. A “mediation communication” means a statement, whether written, verbal or nonverbal, that occurs during mediation or is made for purposes of considering, conducting, participating in, initiating, continuing or reconvening a mediation or retaining a mediator.
Under the terms of the Act, a mediation communication that is privileged is not subject to discovery or admissible as evidence in a proceeding unless waived or precluded by statute. The mediation party may refuse to disclose, and prevent any other person from disclosing, a mediation communication. The mediator may refuse to disclose a mediation communication and may prevent another person from making such a disclosure. Even a person that participates in mediation but is not a party may refuse to disclose a mediation communication.
The protection against disclosure of statements made during mediation allows the parties to conduct serious negotiations. If the parties had to be concerned about what was said or done during mediation, there would likely be little progress made toward settlement. For example, if a defendant in a case took the position that nothing was owed, that defendant can still make some offer of settlement without fear that the other side will argue that the defendant must have known it was liable because an offer of settlement was made.
The Act requires mediators to make an inquiry to determine whether there are any known facts that would be likely to affect the impartiality the mediator. A mediator shall disclose any such facts that are discovered to the mediation parties before accepting mediation. If the discovery occurs after accepting the mediation, a mediator is required to disclose any facts as soon as practicable.
The Act defines the term “mediator” as an individual who conducts mediation. The Act specifically states that there is no requirement that a mediator have a special qualification by background or profession. The Act also requires that a mediator must be impartial, unless the mediator discloses facts relating to a conflict of interest and the parties agree, after disclosure, to retain the mediator.
In summary, the Uniform Mediation Act provides a method by which the parties can resolve their disputes privately. In the event the mediation does not result in a settlement, the parties are assured that all of the communications in the mediation cannot be used in court.
Any person involved in a legal action should consider mediation. Many factors have contributed to increasing the cost of litigation and extending the time that it takes to conclude a case. Often the parties to a lawsuit harden their positions the longer the case takes and the more costly it becomes. A qualified mediator can assist the parties in a finding a path to resolution that involves less cost, less time, and less risk than going to trial.
