Full Text of SB0067 100th General Assembly
SB0067enr 100TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning alternative dispute resolution.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the | 5 | | Collaborative Process Act. | 6 | | Section 5. Definitions. In this Act: | 7 | | (1) "Collaborative process communication" means a | 8 | | statement, whether oral or in a record, or verbal or nonverbal, | 9 | | that: | 10 | | (A) is made to conduct, participate in, continue, or | 11 | | reconvene a collaborative process; and | 12 | | (B) occurs after the parties sign a collaborative | 13 | | process participation agreement and before the | 14 | | collaborative process is concluded. | 15 | | (2) "Collaborative process participation agreement" means | 16 | | a written agreement by persons acting with informed consent to | 17 | | participate in a collaborative process, in which the persons | 18 | | agree to discharge their collaborative process lawyer and law | 19 | | firm if the collaborative process fails. | 20 | | (3) "Collaborative process" means a procedure intended to | 21 | | resolve a collaborative process matter without intervention by | 22 | | a court in which persons: | 23 | | (A) sign a collaborative process participation |
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| 1 | | agreement; and | 2 | | (B) are represented by collaborative process lawyers. | 3 | | (4) "Collaborative process lawyer" means a lawyer who | 4 | | represents a party in a collaborative process and helps carry | 5 | | out the process of the agreement, but is not a party to the | 6 | | agreement. | 7 | | (5) "Collaborative process matter" means a dispute, | 8 | | transaction, claim, problem, or issue for resolution, | 9 | | including a dispute, claim, or issue in a proceeding, which is | 10 | | described in a collaborative process participation agreement | 11 | | and arises under the family or domestic relations law of this | 12 | | State, including: | 13 | | (A) marriage, divorce, dissolution, annulment, legal | 14 | | separation, and property distribution; | 15 | | (B) significant decision making and parenting time of | 16 | | children; | 17 | | (C) maintenance and child support; | 18 | | (D) adoption; | 19 | | (E) parentage; and | 20 | | (F) premarital, marital, and post-marital agreements. | 21 | | "Collaborative process matter" does not include any | 22 | | dispute, transaction, claim, problem, or issue that: (i) is the | 23 | | subject of a pending action under the Juvenile Court Act of | 24 | | 1987; (ii) is under investigation by the Illinois Department of | 25 | | Children and Family Services pursuant to the Abused and | 26 | | Neglected Child Reporting Act; or (iii) resulted in a currently |
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| 1 | | open case with the Illinois Department of Children and Family | 2 | | Services. | 3 | | (6) "Law firm" means: | 4 | | (A) lawyers who practice law together in a partnership, | 5 | | professional corporation, sole proprietorship, limited | 6 | | liability company, or association; and | 7 | | (B) lawyers employed in a legal services organization, | 8 | | law school or the legal department of a corporation or | 9 | | other organization. | 10 | | (7) "Nonparty participant" means a person, other than a | 11 | | party and the party's collaborative process lawyer, that | 12 | | participates in a collaborative process. | 13 | | (8) "Party" means a person other than a collaborative | 14 | | process lawyer that signs a collaborative process | 15 | | participation agreement and whose consent is necessary to | 16 | | resolve a collaborative process matter. | 17 | | (9) "Person" means an individual, corporation, business | 18 | | trust, estate, trust, partnership, limited liability company, | 19 | | association, joint venture, public corporation, government or | 20 | | governmental subdivision, agency, or instrumentality, or any | 21 | | other legal or commercial entity.
| 22 | | (10) "Proceeding" means a judicial or other adjudicative | 23 | | process before a court, including related prehearing and | 24 | | post-hearing motions, conferences, and discovery. | 25 | | (11) "Prospective party" means a person that discusses with | 26 | | a prospective collaborative process lawyer the possibility of |
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| 1 | | signing a collaborative process participation agreement. | 2 | | (12) "Record" means information that is inscribed on a | 3 | | tangible medium or that is stored in an electronic or other | 4 | | medium and is retrievable in perceivable form. | 5 | | (13) "Related to a collaborative process matter" means | 6 | | involving the same parties, transaction or occurrence, nucleus | 7 | | of operative fact, dispute, claim, or issue as the | 8 | | collaborative process matter. | 9 | | (14) "Sign" means, with present intent to authenticate or | 10 | | adopt a record: | 11 | | (A) to execute or adopt a tangible symbol; or | 12 | | (B) to attach to or logically associate with the record | 13 | | an electronic symbol, sound, or process. | 14 | | Section 10. Applicability. This Act applies to a | 15 | | collaborative process participation agreement that meets the | 16 | | requirements of Section 15 signed on or after the effective | 17 | | date of this Act. | 18 | | Section 15. Collaborative process participation agreement; | 19 | | requirements. | 20 | | (a) A collaborative process participation agreement must: | 21 | | (1) be in a record; | 22 | | (2) be signed by the parties; | 23 | | (3) state the parties' intention to resolve a | 24 | | collaborative process matter through a collaborative |
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| 1 | | process under this Act; | 2 | | (4) state the parties' agreement to discharge their | 3 | | collaborative process lawyers and law firms if the | 4 | | collaborative process fails. | 5 | | (5) describe the nature and scope of the matter; | 6 | | (6) identify the collaborative process lawyer who | 7 | | represents each party in the process; and | 8 | | (7) contain a statement by each collaborative process | 9 | | lawyer confirming the lawyer's representation of a party in | 10 | | the collaborative process. | 11 | | (b) Parties may agree to include in a collaborative process | 12 | | participation agreement additional provisions not inconsistent | 13 | | with this Act.
| 14 | | Section 20. Beginning and concluding the collaborative | 15 | | process.
| 16 | | (a) A collaborative process begins when the parties sign a | 17 | | collaborative process participation agreement. | 18 | | (b) A court may not order a party to participate in a | 19 | | collaborative process over that party's objection. | 20 | | (c) A collaborative process is concluded by: | 21 | | (1) resolution of a collaborative process matter as | 22 | | evidenced by a signed record of the parties; | 23 | | (2) resolution of a part of the collaborative process | 24 | | matter, evidenced by a signed record of the parties, in | 25 | | which the parties agree that the remaining parts of the |
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| 1 | | matter will not be resolved in the process; or | 2 | | (3) termination of the process. | 3 | | (d) A collaborative process terminates: | 4 | | (1) when a party gives notice to other parties in a | 5 | | record that the process is ended; | 6 | | (2) when a party: | 7 | | (A) begins a proceeding related to a collaborative | 8 | | process matter without the agreement of all parties; or | 9 | | (B) in a pending proceeding related to the matter: | 10 | | (i) initiates a pleading, motion, order to | 11 | | show cause, or request for a conference with the | 12 | | court; | 13 | | (ii) requests that the proceeding be put on the | 14 | | court's active calendar; or | 15 | | (iii) takes similar action requiring notice to | 16 | | be sent to the parties; | 17 | | (3) except as otherwise provided by subsection (g), | 18 | | when a party discharges a collaborative process lawyer or a | 19 | | collaborative process lawyer withdraws from further | 20 | | representation of a party; or | 21 | | (4) when the process no longer meets the definition of | 22 | | collaborative process matter. | 23 | | (e) A party's collaborative process lawyer shall give | 24 | | prompt notice to all other parties in a record of a discharge | 25 | | or withdrawal. | 26 | | (f) A party may terminate a collaborative process with or |
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| 1 | | without cause. | 2 | | (g) A collaborative process continues, despite the | 3 | | discharge or withdrawal of a collaborative process lawyer, if | 4 | | not later than 30 days after the date that the notice of the | 5 | | discharge or withdrawal of a collaborative process lawyer | 6 | | required by subsection (e) is sent to the parties: | 7 | | (1) the unrepresented party engages a successor | 8 | | collaborative process lawyer; and | 9 | | (2) in a signed record: | 10 | | (A) the parties consent to continue the process by | 11 | | reaffirming the collaborative process participation | 12 | | agreement; | 13 | | (B) the agreement is amended to identify the | 14 | | successor collaborative process lawyer; and
| 15 | | (C) the successor collaborative process lawyer | 16 | | confirms the lawyer's representation of a party in the | 17 | | collaborative process. | 18 | | (h) A collaborative process does not conclude if, with the | 19 | | consent of the parties, a party requests a court to approve a | 20 | | resolution of the collaborative process matter or any part | 21 | | thereof as evidenced by a signed record. | 22 | | (i) A collaborative process participation agreement may | 23 | | provide additional methods of concluding a collaborative | 24 | | process. | 25 | | Section 25. Proceedings pending before a court; status |
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| 1 | | report.
| 2 | | (a) Persons in a proceeding pending before a court may sign | 3 | | a collaborative process participation agreement to seek to | 4 | | resolve a collaborative process matter related to the | 5 | | proceeding. The parties shall file promptly with the court a | 6 | | notice of the agreement after it is signed. Subject to | 7 | | subsection (c) and Sections 30 and 35, the filing operates as | 8 | | an application for a stay of the proceeding.
| 9 | | (b) The parties shall file promptly with the court notice | 10 | | in a record when a collaborative process concludes. The stay of | 11 | | the proceeding, if granted, under subsection (a) is lifted when | 12 | | the notice is filed. The notice may not specify any reason for | 13 | | termination of the process. | 14 | | (c) A court in which a proceeding is stayed under | 15 | | subsection (a) may require the parties and collaborative | 16 | | process lawyers to provide a status report on the collaborative | 17 | | process and the proceeding. A status report may include only | 18 | | information on: (i) whether the process is ongoing or | 19 | | concluded; or (ii) the anticipated duration of the | 20 | | collaborative process. | 21 | | (d) A court may not consider a communication made in | 22 | | violation of subsection (c). | 23 | | (e) A court shall provide parties notice and an opportunity | 24 | | to be heard before dismissing a proceeding in which a notice of | 25 | | collaborative process is filed based on delay or failure to | 26 | | prosecute.
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| 1 | | Section 30. Emergency order. Nothing in the collaborative | 2 | | process may prohibit a party from seeking an emergency order to | 3 | | protect the health, safety, welfare, or interest of a party or | 4 | | person identified as protected in Section 201 of the Illinois | 5 | | Domestic Violence Act of 1986, or may prohibit a party or | 6 | | nonparty participant from making a report of abuse, neglect, | 7 | | abandonment, or exploitation of a child or adult under the law | 8 | | of this State. | 9 | | Section 35. Approval of agreement by the court. A court may | 10 | | approve an agreement resulting from a collaborative process. An | 11 | | agreement resulting from the collaborative process shall be | 12 | | presented to the court for approval if the agreement is to be | 13 | | enforceable. | 14 | | Section 40. Disclosure of information. Voluntary informal | 15 | | disclosure of information related to a matter is a defining | 16 | | characteristic of the collaborative process. Except as | 17 | | provided by law other than this Act, during the collaborative | 18 | | process, on the request of another party, a party shall make | 19 | | timely, full, candid, and informal disclosure of information | 20 | | related to the collaborative process matter without formal | 21 | | discovery. A party also shall update promptly previously | 22 | | disclosed information that has materially changed. The parties | 23 | | may define the scope of disclosure during the collaborative |
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| 1 | | process. | 2 | | Section 45. Standards of professional responsibility and | 3 | | mandatory reporting not affected. This Act does not affect:
| 4 | | (1) the professional responsibility obligations and | 5 | | standards applicable to a lawyer or other licensed | 6 | | professional; or
| 7 | | (2) the obligation of a person to report abuse or | 8 | | neglect, abandonment, or exploitation of a child or adult | 9 | | under the law of this State.
| 10 | | Section 50. Confidentiality of collaborative process | 11 | | communication. A collaborative process communication is | 12 | | confidential to the extent agreed by the parties in a signed | 13 | | record or as provided by law of this State other than this Act. | 14 | | Section 55. Privilege against disclosure for collaborative | 15 | | process communication; admissibility; discovery.
| 16 | | (a) Subject to Sections 60 and 65, a collaborative process | 17 | | communication is privileged under subsection (b), is not | 18 | | subject to discovery, and is not admissible in evidence. | 19 | | (b) In a proceeding, the following privileges apply:
| 20 | | (1) A party may refuse to disclose, and may prevent any | 21 | | other person from disclosing, a collaborative process | 22 | | communication. | 23 | | (2) A nonparty participant may refuse to disclose, and |
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| 1 | | may prevent any other person from disclosing, a | 2 | | collaborative process communication of the nonparty | 3 | | participant.
| 4 | | (c) Evidence or information that is otherwise admissible or | 5 | | subject to discovery does not become inadmissible or protected | 6 | | from discovery solely because of its disclosure or use in a | 7 | | collaborative process. | 8 | | Section 60. Waiver and preclusion of privilege.
| 9 | | (a) A privilege under Section 55 may be waived in a record | 10 | | or orally during a proceeding if it is expressly waived by all | 11 | | parties and, in the case of the privilege of a nonparty | 12 | | participant, it is also expressly waived by the nonparty | 13 | | participant.
| 14 | | (b) A person that makes a disclosure or representation | 15 | | about a collaborative process communication which prejudices | 16 | | another person in a proceeding may not assert a privilege under | 17 | | Section 55, but this preclusion applies only to the extent | 18 | | necessary for the person prejudiced to respond to the | 19 | | disclosure or representation.
| 20 | | Section 65. Limits of privilege.
| 21 | | (a) There is no privilege under Section 55 for a | 22 | | collaborative process communication that is: | 23 | | (1) available to the public under the Freedom of | 24 | | Information Act or made during a session of a collaborative |
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| 1 | | process that is open, or is required by law to be open, to | 2 | | the public; | 3 | | (2) a threat or statement of a plan to inflict bodily | 4 | | injury or commit a crime of violence as defined in Section | 5 | | 1-10 of the Alcoholism and Other Drug Abuse and Dependency | 6 | | Act; | 7 | | (3) intentionally used to plan a crime, commit or | 8 | | attempt to commit a crime, or conceal an ongoing crime or | 9 | | ongoing criminal activity; or | 10 | | (4) in an agreement resulting from the collaborative | 11 | | process, evidenced by a record signed by all parties to the | 12 | | agreement. | 13 | | (b) The privileges under Section 55 for a collaborative | 14 | | process communication do not apply to the extent that a | 15 | | communication is: | 16 | | (1) sought or offered to prove or disprove a claim or | 17 | | complaint of professional misconduct or malpractice | 18 | | arising from or related to a collaborative process; or | 19 | | (2) sought or offered to prove or disprove abuse, | 20 | | neglect, abandonment, or exploitation of a child or adult. | 21 | | (c) There is no privilege under Section 55 if a court | 22 | | finds, after a hearing in camera, that the party seeking | 23 | | discovery or the proponent of the evidence has shown the | 24 | | evidence is not otherwise available, the need for the evidence | 25 | | substantially outweighs the interest in protecting | 26 | | confidentiality, and the collaborative process communication |
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| 1 | | is sought or offered in: | 2 | | (1) a court proceeding involving a felony or | 3 | | misdemeanor; or | 4 | | (2) a proceeding seeking rescission or reformation of a | 5 | | contract arising out of the collaborative process or in | 6 | | which a defense to avoid liability on the contract is | 7 | | asserted. | 8 | | (d) If a collaborative process communication is subject to | 9 | | an exception under subsection (b) or (c), only the part of the | 10 | | communication necessary for the application of the exception | 11 | | may be disclosed or admitted. | 12 | | (e) Disclosure or admission of evidence excepted from the | 13 | | privilege under subsection (b) or (c) does not make the | 14 | | evidence or any other collaborative process communication | 15 | | discoverable or admissible for any other purpose. | 16 | | (f) The privileges under Section 55 do not apply if the | 17 | | parties agree in advance in a signed record, or if a record of | 18 | | a proceeding reflects agreement by the parties, that all or | 19 | | part of a collaborative process is not privileged. This | 20 | | subsection does not apply to a collaborative process | 21 | | communication made by a person that did not receive actual | 22 | | notice of the agreement before the communication was made.
| 23 | | Section 70. Authority of the Illinois Supreme Court. This | 24 | | Act is subject to the supervisory authority of the Illinois | 25 | | Supreme Court. |
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