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The County of DuPage
Wheaton, Illinois
 

Court Rules - Particular Civil Proceedings - Court Ordered Mediation for Civil Cases

III. PARTICULAR CIVIL PROCEEDINGS

ARTICLE 14: COURT ORDERED MEDIATION FOR CIVIL CASES

Court ordered mediation in civil cases in the Circuit Court for the 18th Judicial Circuit, DuPage County, Illinois is established by Administrative Order. The Circuit Judges of the 18th Judicial Circuit adopt the following Local Rules effective October 1, 2007. Court ordered mediation shall be governed by Administrative Order and this Article.

14.01 PURPOSE OF THE MEDIATION PROCESS

Mediation under these rules involves a confidential process whereby a neutral mediator, selected by the parties or appointed by the Court, assists the litigants in reaching a mutually acceptable agreement. It is an informal and non-adversarial process. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, exploring settlement alternatives and reaching an agreement. Parties and their representatives are required to mediate in good faith.  

14.02 CIVIL ACTIONS ELIGIBLE FOR COURT ORDERED MEDIATION

(a) Court ordered mediation for civil cases is undertaken and conducted in the Circuit Court for the 18th Judicial Circuit, and shall be effective for all eligible cases pending on or filed after October 1, 2007.(b) In order to further the purpose of court ordered mediation in civil cases, there shall be a presumption in favor of court ordered mediation for all cases eligible under these rules.(c) All civil actions seeking claims exclusively for money damages in an amount in excess of eligibility for Mandatory Arbitration in this Circuit, as well as all actions pending in the Chancery Division in this Circuit, shall be eligible for court ordered mediation. These civil actions shall be assigned to the Law Division Calendar or the Chancery Division Calendar of the Circuit Court of the 18th Judicial Circuit at the time of initial case filing with the Clerk of the Circuit Court, DuPage County, Illinois. (d) Civil actions, not originally assigned to the Law Division, including actions in Chancery and monetary issues in Domestic Relations cases, may be transferred upon the entry of an Order of Referral to court ordered mediation to the Supervising Judge for court ordered mediation.  

14.03 FILING OF CASES ELIGIBLE FOR COURT ORDERED MEDIATION

In all civil actions eligible for court ordered mediation, the complaint and all summonses shall state in upper case letters on the upper right-hand corner, "THIS CASE IS ELIGIBLE FOR COURT ORDERED MEDIATION." 

14.04 DISCOVERY

(a) Discovery shall proceed as in all other civil actions.(b) Whenever possible, the parties are encouraged to limit discovery to the development of the information necessary to facilitate a meaningful mediation conference. Upon entry of an Order of Referral to court ordered mediation, discovery is deferred. The duty to supplement existing discovery continues throughout the mediation process. In the event the case is not resolved during the mediation process, upon transfer back to the trial judge, discovery may recommence.(c) All oral or written communications made throughout the mediation process shall be confidential, exempt from discovery and inadmissible as evidence in the underlying cause of action unless all parties agree otherwise in writing. Evidence with respect to settlement agreements shall be admissible in proceedings to enforce the settlement. Subject to the foregoing, the mediator may not disclose any information obtained during the mediation process. 

14.05 ORDER OF REFERRAL TO COURT ORDERED MEDIATION

Pursuant to Supreme Court Rule 218, all mediation eligible cases shall be set for a case management conference within one hundred eighty two (182) days of filing. Following the Rule 218 conference, cases may be assigned to court ordered mediation. The entry of an Order of Referral to court ordered mediation assigns the case to court ordered mediation, and transfers the case to the Supervising Judge of court ordered mediation instanter. It also requires the parties to appear within fourteen (14) to twenty-one (21) days before the Supervising Judge for court ordered mediation. In the discretion of the trial judge on the Court's own motion or in response to a motion brought by any party, a case may be assigned to mediation before or after the Rule 218 Conference.  

14.06 PROCEDURE FOLLOWING ENTRY OF AN ORDER OF REFERRAL TO COURT ORDERED MEDIATION

(a) On the first appearance before the Supervising Judge for court ordered mediation, a mediator shall be selected. In the event the parties agree on the selection of a mediator, the Supervising Judge for court ordered mediation shall enter the Order for Mediation Conference. In the event the parties do not agree upon the selection of a mediator by the date set on the Order of Referral to court ordered mediation, the Court shall appoint a mediator from the list of Certified Court Appointed Mediators, and shall enter Order of Mediation Conference and Appointment of Certified Court Appointed Mediator.(b) Any party to a case may request advancement or postponement of a scheduled mediation hearing date by filing a written motion with the Clerk of the Circuit Court requesting the change. The notice of motion and motion shall be served upon counsel for all other parties, upon pro se parties as provided by the Supreme Court Rule and Rules of the Circuit Court of the 18th Judicial Circuit, upon the Arbitration/Mediation Center and upon the Mediator. The motion shall be set for hearing on the calendar of the Supervising Judge for Mediation. The motion shall be verified, contain a concise statement of the reason for the change of hearing date and be subject to Supreme Court Rule 137. The Supervising Judge may grant such advancement or postponement upon good cause shown.(c) After the entry of an order for court ordered mediation and not less than seven (7) days prior to the mediation conference date, any party may file a motion seeking the removal of its claim from mediation. The notice of motion and motion shall be served upon counsel for all other parties, upon pro se parties as provided by Supreme Court Rule and Rules of the Circuit Court of the 18th Judicial Circuit. The motion shall be set for hearing on the calendar of the Supervising Judge. The motion shall be verified and contain a concise statement of the basis for removal from mediation. 

14.07 LOCATION OF MEDIATION CONFERENCES

Unless all parties and the mediator otherwise agree, the location for the mediation conference shall be at a location within DuPage County designated by the mediator. 

14.08 ATTENDANCE AT A MEDIATION CONFERENCE

(a) All parties, attorneys, representatives with settlement authority and other individuals necessary to facilitate settlement of the dispute shall be present at each mediation conference unless excused by court order. 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 in all instances, the plaintiff must appear at the mediation conference; 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.(b) Upon motion, the Court may impose sanctions against any party, or attorney, who fails to comply with this rule, including but not limited to mediation costs and reasonable attorney fees relating to the mediation process. 

14.09 SETTLEMENT PRIOR TO MEDIATION CONFERENCE

Upon settlement of any mediation case pending before the Supervising Judge for court ordered mediation, counsel for plaintiff shall immediately notify the Supervising Judge in writing, and submit the written settlement or other dispositive order on or before the scheduled mediation conference date. The counsel for plaintiff shall also notify the mediator and the Arbitration/Mediation Center that the mediation conference will not take place as scheduled. 

14.10 TERMINATION AND REPORT OF MEDIATION CONFERENCE

(a) At any time after the mediation conference has begun, the mediator may continue or terminate the conference when:(1) In the mediator's opinion, no purpose would be served by continuing the conference; or(2) An individual necessary to facilitate settlement of the dispute is not present.(b) The mediator shall report to the Court in writing whether or not an agreement was reached by the parties within fourteen (14) days after the last day of the mediation conference. The report shall designate "Full Agreement," "Partial Agreement" or "No Agreement." This report shall be signed by the mediator and shall be filed with the Circuit Court Clerk within fourteen (14) days after the last day of mediation conference.(c) If an agreement is reached, it shall be reduced to writing and signed by the parties or their agents before termination of the mediation conference. Each party and the mediator shall receive a copy of the full agreement, partial agreement or no agreement document.(d) If a full agreement was reached, the report shall state whether the action will be concluded by consent judgment or voluntary dismissal and shall identify the persons designated to file such consent judgment or dismissals, and indicate that such document shall be filed on or before the date set for post-mediation conference status.(e) If a partial agreement was reached, the report shall state which claims have been resolved and which claims are not resolved. Further, the report shall state whether the resolved claims will be concluded by consent judgment or voluntary dismissal and shall identify the persons designated to file such consent judgment or dismissal and indicate that such document shall be filed on or before the date set for post-mediation conference status.(f) If no agreement was reached, the mediator shall so report without comment or recommendation. The mediator shall also complete such other forms as may be required by the Circuit Court.(g) In the event of any breach or failure to perform under the "agreement," the Court upon motion may impose sanctions, including but not limited to costs, attorneys fees or entry of judgment on the agreement. 

14.11 POST-MEDIATION CONFERENCE STATUS DATE

(a) The party or attorney designated to file a consent judgment or order of dismissal pursuant to a "full agreement" or "partial agreement" shall appear on the post-mediation conference status date. The consent judgment or Order of Dismissal shall be entered by the Supervising Judge for court ordered mediation. Failure to appear on the post-mediation conference status day may result in the entry of a default judgment or dismissal.(b) All parties or their attorneys whose claim is not resolved after the mediation conference shall appear at the post-mediation conference status date. Failure to appear at the post-mediation conference status date may result in the entry of a default judgment or dismissal.(c) All matters not resolved by court ordered mediation may be reassigned and transferred by the Supervising Judge for court ordered mediation directly to the original trial judge or any other judge now sitting in his or her place for all further proceedings. 

14.12 MEDIATION CONFERENCE CONFIDENTIALITY

(a) Mediations pursuant to these rules shall be confidential and not open to the public. No one engaged in the mediation process under these rules shall be permitted to testify to, nor be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, the statements by any person made in good faith in the course of the mediation process. A court reporter shall not be permitted without leave of court.(b) An exception to confidentiality may be authorized by order of court, when the court is considering a legal challenge to the written and signed report of agreement prepared pursuant to 14.10 above. 

14.13 MEDIATOR IMMUNITY

A mediator, approved and certified by this Circuit and acting pursuant to these rules, shall have judicial immunity in the same manner and to the same extent as a judge, under the authority conferred by Supreme Court Rule 99(b)(1) as amended, effective October 10, 2001. 

14.14 CERTIFICATION OF MEDIATORS FOR COURT ORDERED MEDIATION

The 18th Judicial Circuit shall promulgate a list of mediators who have been certified by this Circuit to act as mediators for the court ordered mediation program. Those mediators certified by the 18th Judicial Circuit must:(a) Be a retired Illinois judge, a graduate of the original DuPage County Mediation Training conducted in 1996 or complete a forty (40) hour mediation training program approved by the ad hoc Civil ADR Committee designated in subparagraph (d) herein; and(b) Be a member listed in good standing with the Illinois Attorney Registration and Disciplinary Commission with at least ten (10) years of trial practice in Illinois; and(c) File an approved application form with the Chief Judge. Such applicant shall certify that he or she is licensed to practice law in the State of Illinois, that his or her license is in good standing, and that he or she has engaged in litigation for not less than ten (10) years, and that he or she has filed proof of legal malpractice insurance.(d) Applicants shall be certified by the majority of an ad hoc Civil ADR Committee of Judges by title consisting of the Chief Judge of the 18th Judicial Circuit, the Presiding Judge of the Law Division, the Presiding Judge of Chancery, the Supervising Judge for court ordered mediation and such other judges as shall be designated by the Chief Judge.(e) Mediators shall perform their first mediation pro bono.

14.15 RE-CERTIFICATION AND REMOVAL OF MEDIATORS FOR COURT ORDERED MEDIATION

(a) Any certified mediator who ceases to be listed in good standing with the Illinois Attorney Registration and Disciplinary Commission, or fails to yearly file a copy of proof of malpractice insurance, or otherwise fails to maintain the quality and integrity of the court ordered mediation program of the 18th Judicial Circuit shall lose his or her status as a court appointed mediator certified by the 18th Judicial Circuit for appointment.(b) Petition for removal of certification may be initiated by the Supervising Judge for court ordered mediation. The petition shall set forth the basis for removal. Prior to removal, the mediator may request an administrative hearing before the Chief Judge of the 18th Judicial Circuit. 

14.16 DISQUALIFICATION OF A MEDIATOR

(a) Any party may file a motion before the Supervising Judge for court ordered mediation to disqualify 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 replacement.(b) If the parties agree on a replacement, the Court shall approve the replacement of a certified mediator and enter an Order for Mediation Conference which sets forth the name of the replacement mediator. If the parties cannot agree on a replacement, the Court shall appoint a certified mediator, and enter an Order for Mediation Conference and Appointment of Certified Court Appointed Mediator.(c) 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.(d) Any person selected or appointed to act as a mediator in any court ordered mediation case shall be barred from representing any party in that case. 

14.17 MEDIATOR COMPENSATION

(a) When the mediator is selected by the parties, the mediator's compensation shall be paid by the parties as agreed upon between the parties and the mediator.(b) When the parties cannot agree on a mediator, the Court shall appoint a mediator from the list of certified court appointed mediators. The compensation for a court appointed mediator shall be shared by all parties participating in the mediation conference. The fee for a court appointed mediator in the 18th Judicial Circuit shall be at the rate of $250 per hour. Once a mediator has been appointed, the mediator shall be entitled to a minimum of one hour's compensation.(c) If any party has been granted leave to sue or defend as a poor person pursuant to Supreme Court Rule 298, the Court shall appoint a mediator who shall serve pro bono without compensation from any party to the action.(d) A court appointed mediator's fee shall be subject to appropriate order or judgment for enforcement. 

14.18 FORM ORDERS

The following form orders shall be used for court ordered mediation:(a) Order of Referral to Court Ordered Mediation
(b) Order for Mediation
(c) Order for Mediation and Court Ordered Mediator
(d) Notice of Mediation Conference Completion
(e) Memorandum of Full Agreement
(f) Memorandum of Partial Agreement
(g) Confidentiality Agreement 

14.19 SUPERVISING JUDGE AND REPORTING REQUIREMENTS

(a) The Chief Judge of the 18th Judicial Circuit shall appoint a Judge of the 18th Judicial Circuit to act as Supervising Judge for Court Ordered Mediation in civil cases, who shall serve at the pleasure of the Chief Judge.(b) The Chief Judge of the 18th Judicial Circuit shall report annually to the Supreme Court of Illinois on this mediation program, including a count of the number of cases assigned to Court Ordered Mediation and the results achieved. 

14.20 DUTIES OF SUPERVISING JUDGE FOR MEDIATION

The duties of the Supervising Judge for Mediation shall include the following:(a) Approve or appoint mediator.(b) Hear motions to interpret all mediation rules.(c) Hear motions to advance, postpone or defer hearings.(d) Hear motions to disqualify a mediator.(e) Hear all post-mediation motions, including motions for entry of judgment, or other dispositive motions, prior to reassignment.(f) Transfer unresolved, post-mediation cases to originally assigned trial court.