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mediation confidentiality in Illinois

Who Cares? Mediation confidentiality is important because it makes it easier for people to speak openly and candidly without fear that their words will be repeated elsewhere. Without confidentiality, there is little reason for parties to be any more open than they are in litigation, where both sides usually seek to conceal any meaningful information the rules allow to be kept secret in hopes of gaining an advantage or avoiding an disadvantage.

Three Kinds of Confidentiality. There are three kinds of mediation confidentiality, and they are not on an equal footing under Illinois law.

  • The first is the protection against having statements made during mediation repeated in court.
  • The second is the obligation of the mediator, the parties and the participants to keep what is said and done in the mediation to themselves and not disclose it to third parties.
  • The third is the obligation of the mediator not to disclose information provided by a party or participant to the mediator in confidence.

Different Legal Status of Different Kinds of Confidentiality. Only the first of these is protected by statute. The others depend on the agreement of the parties to the mediation, but that agreement, whatever it is, may be enforced under the governing statute. The statute recognizes that there may be situations in mediation when the second or third kind of confidentiality is not desired by the parties, and thus leaves them to the parties to decide.

Litigation Privilege & Exceptions. The Illinois Uniform Mediation Act creates a litigation privilege for “mediation communications,” stating that they cannot be used in discovery or trial. The privilege is subject to exceptions, which are:

  • An agreement signed by all parties to the agreement.
  • Communications covered by FOIA or required by law to be open or in a mediation that is agreed to be open.
  • Threats or statements of intent to inflict bodily injury or criminal violence.
  • Communications that are criminal or part of a crime.
  • Communications offered to prove or disprove claims of professional misconduct or malpractice by a mediator.
  • Communications offered to prove or disprove claims of professional misconduct or malpractice by an attorney, party or other participant in the mediation.
  • Evidence of abuse, neglect, abandonment or exploitation of a child (except where a public agency participates in a court-referred mediation).

The statute also permits waiver of this mediation privilege. All parties must agree to waive the privilege in a written record or orally during a proceeding. If the communication is privileged as to the mediator or a non-party participant, then the mediator or non-party participant must expressly consent as well.

Confidentiality Outside Court Proceedings. In some situations, such as those involving governmental matters, public policy or practical considerations may preclude making the statements and actions of parties in a mediation confidential. The parties to a very public dispute may also wish to preserve for themselves the opportunity to “spin” the mediation activity in the media. Generally, however, people prefer to let “what happens in Vegas stay in Vegas” in mediation.

This restriction must be made with eyes open. The parties will naturally want to recount to family and friends what happened, and where there is significant sensitivity about this, the attorneys need to caution their clients strongly. If the concern is about repetition of mediation activity or statements in the Wall Street Journal or on a talk show, then there can be a “friends and family” exception. In a corporate setting, complete confidentiality is generally unrealistic: reports to upper management on the outcome and the experience may be required, so the agreement should permit organizations to make internal reports on a need-to-know basis.

Information Confided To The Mediator. Parties rarely reveal vulnerabilities or adverse information to the party with whom they are negotiating. It is an invitation to be exploited. They may be willing to disclose that information to the mediator.

Parties sometimes have useful evidence or knowledge that they believe has value precisely because it is not known to the other side. For instance, one party may have evidence of an action or statement by a witness and wish to question the witness to see if s/he will tell the truth, even hoping that the witness will be caught in a lie by the information. But that same information, disclosed early, might prompt the other side to reconsider its position and make a more favorable settlement.

But in certain mediations, where the mediator is performing a pure facilitative function and keeping any secret would damage the adverse party’s view of mediator’s impartiality, there may be no confidences. This occurs in some public policy and family mediations, for instance.

My Mediation Agreement. My Mediation And Confidentiality Agreement form:

  • Specifically references the Illinois Uniform Mediation Act and provides that it applies to the mediation (if the mediation is conducted in Illinois), to avoid any potential risk that where parties, or participants, or some of them, are from out-of-State, any other law could be applied.
  • Provides for mediation confidentiality except where disclosure is to a person with a need to know, and in those circumstances makes the party a guarantor that confidentiality will be pointed out and kept.
  • Provides for the mediator’s obligation to keep confidential from the other side information that one side discloses to him or her in confidence.
  • Applies the same exceptions that the statute mandates for the mediation privilege to these other two forms of confidentiality.

Mediation of Federal Law Disputes. In disputes arising under federal law, the privilege rules of the Federal Rules of Evidence govern questions of admissibility and privilege in federal court, FRE 501. What confidentiality applies to mediation communications under federal law?

Federal Rule of Evidence 408 provides that conduct or statements made in compromise negotiations concerning the claim when offered to show liability for, or invalidity of, a disputed claim or to impeach on the basis of a prior inconsistent statement is not admissable. This is sufficient protection for most cases, but there is an exception to this rule when the evidence is offered for other purposes, such as a witness’s bias or prejudice, to refute a claim of undue delay or to show obstruction of a criminal investigation or prosecution.

Rule 501 does contemplate the emergence of new privileges, providing that privilege issues will be governed by “principles of common law as they may be interpreted by the courts of the United States in light of reason and experience.” This flexibility was interpreted by the Supreme Court as sufficient to recognize a psychotherapist-patient privilege in Jaffe v. Redmond, 518 U.S. 1 (1996), but to date the federal courts are divided on the question of whether a broader privilege for mediation communications should be recognized.

The Alternative Dispute Resolution Act of 1998 (“ADR Act”) called for federal district courts to adopt rules providing for confidentiality in mediation conducted under the auspices of programs established by local court rule. 28 U.S.C. §652(d). The ADR Act also provides for each District Court to require that litigants consider an alternative dispute resolution process in all civil cases, subject to exempting certain categories of cases. The local rules for the U.S. District Court for the Northern District of Illinois provide only for voluntary mediation of trademark (Lanham Act) cases. Local Rule 16.3. The rule provides for confidentiality in connection with that mediation program.

However, in addition to the provision for confidentiality for the Lanham Act program under Rule Local Rule 16.3, there is a general rule for confidentiality in ADR proceedings in Rule 83.5. The rule provides as follows:

Pursuant to 28 U.S.C. § 652(d), all non-binding alternative dispute resolution (“ADR”) proceedings referred or approved by any judicial officer of this court in a case pending before such judicial officer, including any act or statement made by any party, attorney or other participant, shall, in all respects, be privileged and not reported, recorded, placed in evidence, made known to the trial court or jury (without consent of all parties), or construed for any purpose as an admission in the case referred or in any case or proceeding. No participant in the ADR proceedings shall be bound by anything done or said at the ADR conference unless a settlement is reached, in which event the settlement shall be reduced to writing or otherwise memorialized and shall be binding upon all parties to the settlement.

Thus, parties with cases pending in federal court in the Northern District of Illinois that are based on a federal law should advise the court of a scheduled mediation. If they seek the enhanced confidentiality of a mediation privilege, the parties should ask that the court incorporate in its order on the case a statement that (1) the court has approved of the mediation and (2) that local rule 83.5 shall be applicable to the mediation.

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