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Public Act 100-0205 | ||||
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AN ACT concerning alternative dispute resolution.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 1. Short title. This Act may be cited as the | ||||
Collaborative Process Act. | ||||
Section 5. Definitions. In this Act: | ||||
(1) "Collaborative process communication" means a | ||||
statement, whether oral or in a record, or verbal or nonverbal, | ||||
that: | ||||
(A) is made to conduct, participate in, continue, or | ||||
reconvene a collaborative process; and | ||||
(B) occurs after the parties sign a collaborative | ||||
process participation agreement and before the | ||||
collaborative process is concluded. | ||||
(2) "Collaborative process participation agreement" means | ||||
a written agreement by persons acting with informed consent to | ||||
participate in a collaborative process, in which the persons | ||||
agree to discharge their collaborative process lawyer and law | ||||
firm if the collaborative process fails. | ||||
(3) "Collaborative process" means a procedure intended to | ||||
resolve a collaborative process matter without intervention by | ||||
a court in which persons: | ||||
(A) sign a collaborative process participation |
agreement; and | ||
(B) are represented by collaborative process lawyers. | ||
(4) "Collaborative process lawyer" means a lawyer who | ||
represents a party in a collaborative process and helps carry | ||
out the process of the agreement, but is not a party to the | ||
agreement. | ||
(5) "Collaborative process matter" means a dispute, | ||
transaction, claim, problem, or issue for resolution, | ||
including a dispute, claim, or issue in a proceeding, which is | ||
described in a collaborative process participation agreement | ||
and arises under the family or domestic relations law of this | ||
State, including: | ||
(A) marriage, divorce, dissolution, annulment, legal | ||
separation, and property distribution; | ||
(B) significant decision making and parenting time of | ||
children; | ||
(C) maintenance and child support; | ||
(D) adoption; | ||
(E) parentage; and | ||
(F) premarital, marital, and post-marital agreements. | ||
"Collaborative process matter" does not include any | ||
dispute, transaction, claim, problem, or issue that: (i) is the | ||
subject of a pending action under the Juvenile Court Act of | ||
1987; (ii) is under investigation by the Illinois Department of | ||
Children and Family Services pursuant to the Abused and | ||
Neglected Child Reporting Act; or (iii) resulted in a currently |
open case with the Illinois Department of Children and Family | ||
Services. | ||
(6) "Law firm" means: | ||
(A) lawyers who practice law together in a partnership, | ||
professional corporation, sole proprietorship, limited | ||
liability company, or association; and | ||
(B) lawyers employed in a legal services organization, | ||
law school or the legal department of a corporation or | ||
other organization. | ||
(7) "Nonparty participant" means a person, other than a | ||
party and the party's collaborative process lawyer, that | ||
participates in a collaborative process. | ||
(8) "Party" means a person other than a collaborative | ||
process lawyer that signs a collaborative process | ||
participation agreement and whose consent is necessary to | ||
resolve a collaborative process matter. | ||
(9) "Person" means an individual, corporation, business | ||
trust, estate, trust, partnership, limited liability company, | ||
association, joint venture, public corporation, government or | ||
governmental subdivision, agency, or instrumentality, or any | ||
other legal or commercial entity.
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(10) "Proceeding" means a judicial or other adjudicative | ||
process before a court, including related prehearing and | ||
post-hearing motions, conferences, and discovery. | ||
(11) "Prospective party" means a person that discusses with | ||
a prospective collaborative process lawyer the possibility of |
signing a collaborative process participation agreement. | ||
(12) "Record" means information that is inscribed on a | ||
tangible medium or that is stored in an electronic or other | ||
medium and is retrievable in perceivable form. | ||
(13) "Related to a collaborative process matter" means | ||
involving the same parties, transaction or occurrence, nucleus | ||
of operative fact, dispute, claim, or issue as the | ||
collaborative process matter. | ||
(14) "Sign" means, with present intent to authenticate or | ||
adopt a record: | ||
(A) to execute or adopt a tangible symbol; or | ||
(B) to attach to or logically associate with the record | ||
an electronic symbol, sound, or process. | ||
Section 10. Applicability. This Act applies to a | ||
collaborative process participation agreement that meets the | ||
requirements of Section 15 signed on or after the effective | ||
date of this Act. | ||
Section 15. Collaborative process participation agreement; | ||
requirements. | ||
(a) A collaborative process participation agreement must: | ||
(1) be in a record; | ||
(2) be signed by the parties; | ||
(3) state the parties' intention to resolve a | ||
collaborative process matter through a collaborative |
process under this Act; | ||
(4) state the parties' agreement to discharge their | ||
collaborative process lawyers and law firms if the | ||
collaborative process fails. | ||
(5) describe the nature and scope of the matter; | ||
(6) identify the collaborative process lawyer who | ||
represents each party in the process; and | ||
(7) contain a statement by each collaborative process | ||
lawyer confirming the lawyer's representation of a party in | ||
the collaborative process. | ||
(b) Parties may agree to include in a collaborative process | ||
participation agreement additional provisions not inconsistent | ||
with this Act.
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Section 20. Beginning and concluding the collaborative | ||
process.
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(a) A collaborative process begins when the parties sign a | ||
collaborative process participation agreement. | ||
(b) A court may not order a party to participate in a | ||
collaborative process over that party's objection. | ||
(c) A collaborative process is concluded by: | ||
(1) resolution of a collaborative process matter as | ||
evidenced by a signed record of the parties; | ||
(2) resolution of a part of the collaborative process | ||
matter, evidenced by a signed record of the parties, in | ||
which the parties agree that the remaining parts of the |
matter will not be resolved in the process; or | ||
(3) termination of the process. | ||
(d) A collaborative process terminates: | ||
(1) when a party gives notice to other parties in a | ||
record that the process is ended; | ||
(2) when a party: | ||
(A) begins a proceeding related to a collaborative | ||
process matter without the agreement of all parties; or | ||
(B) in a pending proceeding related to the matter: | ||
(i) initiates a pleading, motion, order to | ||
show cause, or request for a conference with the | ||
court; | ||
(ii) requests that the proceeding be put on the | ||
court's active calendar; or | ||
(iii) takes similar action requiring notice to | ||
be sent to the parties; | ||
(3) except as otherwise provided by subsection (g), | ||
when a party discharges a collaborative process lawyer or a | ||
collaborative process lawyer withdraws from further | ||
representation of a party; or | ||
(4) when the process no longer meets the definition of | ||
collaborative process matter. | ||
(e) A party's collaborative process lawyer shall give | ||
prompt notice to all other parties in a record of a discharge | ||
or withdrawal. | ||
(f) A party may terminate a collaborative process with or |
without cause. | ||
(g) A collaborative process continues, despite the | ||
discharge or withdrawal of a collaborative process lawyer, if | ||
not later than 30 days after the date that the notice of the | ||
discharge or withdrawal of a collaborative process lawyer | ||
required by subsection (e) is sent to the parties: | ||
(1) the unrepresented party engages a successor | ||
collaborative process lawyer; and | ||
(2) in a signed record: | ||
(A) the parties consent to continue the process by | ||
reaffirming the collaborative process participation | ||
agreement; | ||
(B) the agreement is amended to identify the | ||
successor collaborative process lawyer; and
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(C) the successor collaborative process lawyer | ||
confirms the lawyer's representation of a party in the | ||
collaborative process. | ||
(h) A collaborative process does not conclude if, with the | ||
consent of the parties, a party requests a court to approve a | ||
resolution of the collaborative process matter or any part | ||
thereof as evidenced by a signed record. | ||
(i) A collaborative process participation agreement may | ||
provide additional methods of concluding a collaborative | ||
process. | ||
Section 25. Proceedings pending before a court; status |
report.
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(a) Persons in a proceeding pending before a court may sign | ||
a collaborative process participation agreement to seek to | ||
resolve a collaborative process matter related to the | ||
proceeding. The parties shall file promptly with the court a | ||
notice of the agreement after it is signed. Subject to | ||
subsection (c) and Sections 30 and 35, the filing operates as | ||
an application for a stay of the proceeding.
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(b) The parties shall file promptly with the court notice | ||
in a record when a collaborative process concludes. The stay of | ||
the proceeding, if granted, under subsection (a) is lifted when | ||
the notice is filed. The notice may not specify any reason for | ||
termination of the process. | ||
(c) A court in which a proceeding is stayed under | ||
subsection (a) may require the parties and collaborative | ||
process lawyers to provide a status report on the collaborative | ||
process and the proceeding. A status report may include only | ||
information on: (i) whether the process is ongoing or | ||
concluded; or (ii) the anticipated duration of the | ||
collaborative process. | ||
(d) A court may not consider a communication made in | ||
violation of subsection (c). | ||
(e) A court shall provide parties notice and an opportunity | ||
to be heard before dismissing a proceeding in which a notice of | ||
collaborative process is filed based on delay or failure to | ||
prosecute.
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Section 30. Emergency order. Nothing in the collaborative | ||
process may prohibit a party from seeking an emergency order to | ||
protect the health, safety, welfare, or interest of a party or | ||
person identified as protected in Section 201 of the Illinois | ||
Domestic Violence Act of 1986, or may prohibit a party or | ||
nonparty participant from making a report of abuse, neglect, | ||
abandonment, or exploitation of a child or adult under the law | ||
of this State. | ||
Section 35. Approval of agreement by the court. A court may | ||
approve an agreement resulting from a collaborative process. An | ||
agreement resulting from the collaborative process shall be | ||
presented to the court for approval if the agreement is to be | ||
enforceable. | ||
Section 40. Disclosure of information. Voluntary informal | ||
disclosure of information related to a matter is a defining | ||
characteristic of the collaborative process. Except as | ||
provided by law other than this Act, during the collaborative | ||
process, on the request of another party, a party shall make | ||
timely, full, candid, and informal disclosure of information | ||
related to the collaborative process matter without formal | ||
discovery. A party also shall update promptly previously | ||
disclosed information that has materially changed. The parties | ||
may define the scope of disclosure during the collaborative |
process. | ||
Section 45. Standards of professional responsibility and | ||
mandatory reporting not affected. This Act does not affect:
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(1) the professional responsibility obligations and | ||
standards applicable to a lawyer or other licensed | ||
professional; or
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(2) the obligation of a person to report abuse or | ||
neglect, abandonment, or exploitation of a child or adult | ||
under the law of this State.
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Section 50. Confidentiality of collaborative process | ||
communication. A collaborative process communication is | ||
confidential to the extent agreed by the parties in a signed | ||
record or as provided by law of this State other than this Act. | ||
Section 55. Privilege against disclosure for collaborative | ||
process communication; admissibility; discovery.
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(a) Subject to Sections 60 and 65, a collaborative process | ||
communication is privileged under subsection (b), is not | ||
subject to discovery, and is not admissible in evidence. | ||
(b) In a proceeding, the following privileges apply:
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(1) A party may refuse to disclose, and may prevent any | ||
other person from disclosing, a collaborative process | ||
communication. | ||
(2) A nonparty participant may refuse to disclose, and |
may prevent any other person from disclosing, a | ||
collaborative process communication of the nonparty | ||
participant.
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(c) Evidence or information that is otherwise admissible or | ||
subject to discovery does not become inadmissible or protected | ||
from discovery solely because of its disclosure or use in a | ||
collaborative process. | ||
Section 60. Waiver and preclusion of privilege.
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(a) A privilege under Section 55 may be waived in a record | ||
or orally during a proceeding if it is expressly waived by all | ||
parties and, in the case of the privilege of a nonparty | ||
participant, it is also expressly waived by the nonparty | ||
participant.
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(b) A person that makes a disclosure or representation | ||
about a collaborative process communication which prejudices | ||
another person in a proceeding may not assert a privilege under | ||
Section 55, but this preclusion applies only to the extent | ||
necessary for the person prejudiced to respond to the | ||
disclosure or representation.
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Section 65. Limits of privilege.
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(a) There is no privilege under Section 55 for a | ||
collaborative process communication that is: | ||
(1) available to the public under the Freedom of | ||
Information Act or made during a session of a collaborative |
process that is open, or is required by law to be open, to | ||
the public; | ||
(2) a threat or statement of a plan to inflict bodily | ||
injury or commit a crime of violence as defined in Section | ||
1-10 of the Alcoholism and Other Drug Abuse and Dependency | ||
Act; | ||
(3) intentionally used to plan a crime, commit or | ||
attempt to commit a crime, or conceal an ongoing crime or | ||
ongoing criminal activity; or | ||
(4) in an agreement resulting from the collaborative | ||
process, evidenced by a record signed by all parties to the | ||
agreement. | ||
(b) The privileges under Section 55 for a collaborative | ||
process communication do not apply to the extent that a | ||
communication is: | ||
(1) sought or offered to prove or disprove a claim or | ||
complaint of professional misconduct or malpractice | ||
arising from or related to a collaborative process; or | ||
(2) sought or offered to prove or disprove abuse, | ||
neglect, abandonment, or exploitation of a child or adult. | ||
(c) There is no privilege under Section 55 if a court | ||
finds, after a hearing in camera, that the party seeking | ||
discovery or the proponent of the evidence has shown the | ||
evidence is not otherwise available, the need for the evidence | ||
substantially outweighs the interest in protecting | ||
confidentiality, and the collaborative process communication |
is sought or offered in: | ||
(1) a court proceeding involving a felony or | ||
misdemeanor; or | ||
(2) a proceeding seeking rescission or reformation of a | ||
contract arising out of the collaborative process or in | ||
which a defense to avoid liability on the contract is | ||
asserted. | ||
(d) If a collaborative process communication is subject to | ||
an exception under subsection (b) or (c), only the part of the | ||
communication necessary for the application of the exception | ||
may be disclosed or admitted. | ||
(e) Disclosure or admission of evidence excepted from the | ||
privilege under subsection (b) or (c) does not make the | ||
evidence or any other collaborative process communication | ||
discoverable or admissible for any other purpose. | ||
(f) The privileges under Section 55 do not apply if the | ||
parties agree in advance in a signed record, or if a record of | ||
a proceeding reflects agreement by the parties, that all or | ||
part of a collaborative process is not privileged. This | ||
subsection does not apply to a collaborative process | ||
communication made by a person that did not receive actual | ||
notice of the agreement before the communication was made.
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Section 70. Authority of the Illinois Supreme Court. This | ||
Act is subject to the supervisory authority of the Illinois | ||
Supreme Court. |