Ill. R. Cir. Ct. Will Cnty. 17.03

As amended through September 23, 2024

Rule 17.03 - Mediation Rules and Procedures

A. Appointment of the Mediator

1. Upon referral of the case to mediation, the court shall provide a list of mediators certified by the 12^th Judicial Circuit. Within 14 days of the order of referral, all parties may present a stipulation designating a certified mediator from the list provided by the court or one they choose from outside the certified mediator list. If all parties cannot agree on a mediator, the court shall appoint one from the list of approved mediators.

2. The court, upon determining that issues regarding the case are of a complex, unusual or specialized nature, may appoint an individual not on the list of certified arbitrators.

B. Compensation of the Mediator

Each party shall pay a proportionate share of the total charges of the mediator. All compensation due to mediators shall be collected by the mediator him/herself. Court staff shall under no circumstances be involved in the collection or compensation of a mediator for his/her services. If any party had been granted leave to sue or defend as a poor person, the court shall appoint a mediator who shall serve pro bono as to that party. A court appointed mediators fee shall be subject to appropriate order of judgment for enforcement.

C. Disqualification of a Mediator

Any party may move to enter an order disqualifying a mediator for good cause. If the court rules that a mediator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators from disqualifying themselves or refusing any assignment. The time for mediation shall be tolled during any periods in which a motion to disqualify is pending. An hourly fee in excess of prevailing standards may be grounds for disqualification.

D. Interim or Emergency Relief

A party may apply to the court for interim or emergency relief at any time. Mediation shall continue while such a motion is pending absent a contrary order of the court or a decision of the mediator to adjourn pending disposition of the motion.

E. Sanctions for Failure to Appear

If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorney fees and other costs, against the party failing to appear. If a party to mediation is a public entity, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. Otherwise, unless stipulated by the parties, or by order of the court, a party is deemed to appear at a mediation conference if the following persons are physically present:

1. The party or its representative having full authority to settle without further consultation; and

2. The party's counsel of record, if any; and

3. A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to negotiate and recommend settlements to the limits of the policy or the most recent demand, whichever is lower without further consultation.

F. Adjournments

The mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned conference notwithstanding Sec. I of this General Order. No further notification is required for parties present at the adjourned conference.

G. Counsel

The mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation. Counsel shall be permitted to communicate privately with their clients.

H. Communication with Parties

The mediator may meet and consult privately with any party and his/her representative during the mediation session.

I. Completion of the Mediation

Mediation shall be completed within eight (8) weeks of the first mediation conference unless extended by order of the court or by stipulation of the parties.

J No Agreement

If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation.

K. Agreement

If an agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any, at the conclusion of the mediation.

L. Imposition of Sanctions

In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorney fees, or other appropriate remedies including entry of judgment on the agreement.

M. Discovery

Discovery may continue throughout mediation.

N. Confidentiality of Communications

All oral or written communications with the 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. All such communications shall be exempt from discovery and inadmissible as evidence in any action or proceeding. However, evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation session.

The general rule of confidentiality does not apply in the following situations:

1. Where professional misconduct reporting rules, such as the Rules of Professional Conduct, require reporting of a mediation communication;

2. As necessary for the mediator to defend against a lawsuit or claim for malpractice or other misconduct; or,

3. In the case of a threat of a prospective crime or of serious imminent harm to any person.

In such circumstances, the reporting party may testify to or report only the necessary information to the appropriate authorities. The mediator shall not be compelled to provide evidence of a mediation communication in any lawsuit or claim against an attorney or party participating in the mediation.

O. Forms

The forms necessary for the operation of the Court - Annexed Mediation program shall be provided by the Administrator of the program.

Ill. R. Cir. Ct. Will Cnty. 17.03

Effective 11/30/2015; Revised 10/1/2023.