Section 201.10  Procedure Governed

 

This Part governs practice and procedure before the Illinois Commerce Commission (Commission) in the mediation proceedings under Section 10-101.1 of the Public Utilities (Act) [220 ILCS 5/10-101.1]. This Part does not apply in the mediation proceedings under Section 13-713 of the Act [220 ILCS 5/13-713].

 

Section 201.20  Definitions

 

The following terms as used in this Part shall have the following meanings:

 

                        "Act" means the Public Utilities Act [220 ILCS 5].

 

"Mediation" means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. (Section 2(1) of the Uniform Mediation Act [710 ILCS 35/2(1)]

 

"Mediation communications" means any documents of every kind and nature, including work papers, photographs, films, recordings, memoranda, books, records, accounts, all recoverable information in computer storage, including the original and non-identical copies and drafts of all recorded or graphic matter whatsoever, whether in written, electronic or other format, and any oral communications of every kind and nature, where such mediation communications have been exchanged, shared or divulged in the context of "mediation" as that term is defined in this Section.

 

"Mediation participant" means an interested person whose rights or interests would be affected by a dispute and who participates in a mediation pursuant to this Part.

 

"Mediator" means an independent neutral third party or trained member of Commission staff who acts in a non-judicial capacity to facilitate communication, promote understanding, focus the mediation participants on their interests, and seek creative problem solving to enable the mediation participants to reach their own resolution of the dispute.

 

"Party" shall have the same meaning as it does in 83 Ill. Adm. Code 200.40.

 

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity. [710 ILCS 35/2(6)]

 

"Proceeding" means any judicial, administrative, arbitral, or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery; and also any legislative hearing or similar process.

 

Section 201.30  Appointment of Mediator

 

a)         The Executive Director of the Commission or his/her designee shall appoint a mediator who shall not have any financial or personal interest in the result of the mediation.  If an Administrative Law Judge is appointed as a mediator, the same Administrative Law Judge shall not preside over a docketed matter concerning the same dispute for which he/she acts or acted as the mediator.  If a member of Commission staff is appointed as a mediator, the same member of Commission staff shall not participate in a docketed matter concerning the same dispute for which he/she acts or acted as the mediator, unless all parties to the docketed matter waive, in writing, any objection to the Commission staff member's involvement in the docketed matter.

 

b)         Each mediation participant initiating a mediation shall have a one-time right to request that the appointed mediator be replaced by another mediator selected by the Executive Director of the Commission or his/her designee.  Mediation participants choosing to exercise this right shall notify the Executive Director or, if known, his/her designee of their request in writing within seven days after being informed of the identity of the mediator, as provided in Section 201.120.  Upon receipt of the request, the Executive Director or his/her designee shall appoint a replacement mediator within two business days.  The period between the date that a mediation participant submits a request that the appointed mediator be replaced and the date that the Chief Clerk issues a notice identifying the replacement mediator, as described in Section 201.120, shall not be included in the calculation of the duration of the mediation process as provided for in Section 201.260.

 

Section 201.40  Participation of Commission Staff

 

For the purposes of this Part, Commission staff shall have the same rights to participate in a mediation as any other person.

 

Section 201.50  Participation of Intervenor

 

a)         For the purposes of this Part, a person who intervenes in a pending docket in which the existing parties have already requested mediation shall be able to participate in the mediation.  If such intervening party chooses not to participate in the mediation, the mediation may proceed without the intervening party.  If the mediation concludes successfully, any resulting agreement brought into the pending docket shall be treated as a settlement proposal offered by the mediation participants and, if rejected by any party, shall be treated as a contested matter in the pending docket as provided in Commission rules (see 83 Ill. Adm. Code 200).

 

b)         An intervening party that chooses to participate in the mediation may raise new issues for mediation with the consent of all other then-existing mediation participants.

 

c)         An intervening party shall not have the right to request that the appointed mediator be replaced by another mediator, where the intervening party has not initiated the mediation.

 

Section 201.100  Request for Mediation

 

a)         Persons with disputes subject to the Commission's jurisdiction may request voluntary mediation prior to the filing of, or at any point during, the pendency of a contested matter. [220 ILCS 10-101.1(c)]  Persons with disputes are encouraged to request mediation prior to initiating a docket to resolve a contested matter.

 

b)         End-user customers with non-docketed contested matters whose disputes are subject to the Commission's jurisdiction may request voluntary mediation under this Part after filing an informal complaint with the Commission's Consumer Services Division and upon completion of the informal complaint process.

 

Section 201.110  Submitting a Request for Mediation

 

a)         A request for mediation shall be in writing and shall be jointly submitted to the Chief Clerk of the Commission by agreement of all persons party to the dispute.

 

b)         A request for mediation shall include:

 

1)         A brief statement of the issues to be addressed in the mediation;

 

2)         Disclosure of whether any of the issues for which mediation is sought is the subject of any pending formal proceeding and, if so:

 

A)        the docket number of the docketed proceeding before the Commission, or

 

B)        the case name, docket number, and forum if a civil court matter;

 

3)         Disclosure of whether any of the issues for which mediation is sought has been the subject of an informal complaint with the Commission's Consumer Services Division, and, if so, the informal complaint number assigned by the Consumer Services Division;

 

4)         The name, address, telephone number, and, if available, the facsimile number and e-mail address of each mediation participant or an alternate contact person for each mediation participant submitting the request for mediation;

 

5)         The location where the mediation participants prefer the mediation to occur (i.e., Springfield or Chicago);

 

6)         The specific relief requested by each mediation participant; and

 

7)         An express statement that the mediation is being requested under 83 Ill. Adm. Code 201.

 

c)         A request for mediation may include any additional documents that the mediation participants believe are pertinent to the matter.

 

(Source:  Amended at 29 Ill. Reg. 7212, effective June 1, 2005)

 

Section 201.120  Notice of Mediation

 

a)         Within seven calendar days after receipt of a request for mediation, the Chief Clerk of the Commission shall issue a notice to the mediation participants identifying the mediator and explaining the mediation process.

 

b)         If, pursuant to Section 201.30(b), a mediation participant that is among those that initiated the mediation exercises its right to request that the appointed mediator be replaced, the Chief Clerk of the Commission shall issue a notice to the mediation participants identifying the replacement mediator.

 

Section 201.130  Scheduling of Mediation

 

The mediation shall be scheduled taking into consideration the availability of the mediation participants.  With the consent of all mediation participants and the mediator, the mediation may be conducted telephonically.

 

Section 201.200  Authority of a Mediation Participant's Representative

 

A person who has authority to mediate and bind the mediation participant to any agreement that is reached in mediation shall represent the mediation participant.  All representatives shall be required to affirm in writing that they have authority to bind the mediation participants that they represent prior to the commencement of mediation.

 

Section 201.210  Role of Counsel

 

An attorney or other individual designated by a mediation participant may accompany the mediation participant to and participate in a mediation and shall also be permitted to communicate privately with the mediation participant.  Nothing herein precludes the attorney or other individual designated by a mediation participant as serving as the mediation participant's representative as otherwise allowed pursuant to Section 201.200.

 

Section 201.220  Role of Mediator

 

The mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation.  The mediator may meet and consult privately with any mediation participant and his/her representative during the mediation session.

 

Section 201.230  Adjournment

 

The mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned conference.  No further notification is required for mediation participants present at the adjourned conference.

 

Section 201.240  Supervision of Exchange of Information

 

The mediator shall supervise the exchange of information between the mediation participants during the mediation sessions.  Any exchange of information between mediation participants shall be voluntary.

 

Section 201.250  Privilege Against Disclosure; Admissibility; Discovery

 

a)         Except as otherwise provided in Section 201.252, mediation communications, including notes and writings, are privileged as provided in subsection (b) and are not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 201.251.

 

b)         In a proceeding, the following privileges apply:

 

1)         A mediation participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

 

2)         A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

 

c)         Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. [710 ILCS 35/4]

 

Section 201.251  Waiver and Preclusion of Privilege

 

a)         A privilege under Section 201.250 may be waived in a record or orally during a proceeding if it is expressly waived by all participants to the mediation, and in the case of the privilege of a mediator, if it is expressly waived by the mediator.

 

b)         A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under Section 201.250, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

 

c)         A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under Section 201.250. [710 ILCS 35/5]

 

Section 201.252  Exceptions to Privilege

 

a)         There is no privilege under Section 201.250 for a mediation communication that is:

 

1)         in a written agreement resulting from the mediation;

 

2)         available to the public under the Freedom of Information Act [5 ILCS 140] or made during a session or a mediation which is open, or is required by law to be open, to the public;

 

3)         a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

 

4)         intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

 

5)         sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or

 

6)         except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation participant or representative of a participant based on conduct occurring during a mediation.

 

b)         There is no privilege under Section 201.250 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the person seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

 

1)         a court proceeding involving a felony; or

 

2)         except as otherwise provided in subsection (c), a proceeding:

 

A)        to prove a claim arising out of a mediated agreement;

 

B)        to rescind or reform a mediated agreement; or

 

C)        in which a defense is prepared against a claim arising out of a mediated agreement.

 

c)         A  mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

 

d)         If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted.  Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.  [710 ILCS 35/6]

 

Section 201.260  Duration of Mediation

 

Unless otherwise agreed to by all of the mediation participants, the mediation process shall be completed no later than 45 days after the Chief Clerk's receipt of a joint request for mediation.  In no event shall the mediation process be extended beyond the statutory deadline of an underlying pending docket, unless the statute permits a waiver of the deadline and all of the mediation participants and any non-mediating parties waive the deadline.

 

Section 201.270  Settlement Shall be Reduced to Writing

 

a)         If agreement is reached, the agreement shall be reduced to writing by the mediation participants or the mediator at the conclusion of the mediation.

 

b)         The writing shall contain mutual conditions, payment arrangements, or other terms that resolve the dispute in part or in its entirety.

 

c)         Each mediation participant shall execute the agreement.

 

Section 201.280  Document Retention

 

a)         At the conclusion of the mediation, if a settlement agreement of any or all of the issues mediated is agreed to by the mediation participants, the mediator shall submit to the Chief Clerk's Office a Memorandum of Agreement.

 

b)         The Memorandum of Agreement, at a minimum, shall list:

 

1)         The issues resolved in the mediation;

 

2)         The mediation participants; and

 

3)         The mediation participants that signed the confidential written settlement agreement.

 

c)         The Memorandum of Agreement shall refer, by name and date, to the separate, confidential, written settlement agreement produced in accordance with this Part.

 

d)        The terms of the confidential written settlement agreement shall not be included in the Memorandum of Agreement.

 

Section 201.300  Failure to Agree

 

If the mediation participants are unable to reach agreement at the end of 45 days, or other deadline as agreed to by the mediation participants and any non-mediating parties in a docketed matter pursuant to Section 201.260, the mediation is terminated.  The mediator shall report the lack of an agreement and termination of the mediation to the Chief Clerk's Office and, if the mediation arises from a docketed proceeding, to the Administrative Law Judge presiding over that docketed proceeding.

 

Section 201.310  Enforcement of Settlement Agreement

 

If any mediation participant fails to abide by the terms of the settlement agreement, a mediation participant may exercise any rights it may have with respect to the agreement either as provided in Commission rules (see 83 Ill. Adm. Code 200) or in law or equity.

 

Section 201.400  Continuing Authority of the Commission

 

Nothing contained in the mediation agreement shall be construed as a limitation on the authority of the Commission to exercise its statutory authority under the Act.