Court-Annexed Civil Mediation

Mediation offers the parties involved in complex litigation an opportunity to explore settlement alternatives with a highly trained and experienced mediator. Mediation can help litigants avoid the higher costs, expenses and drain of a lengthy trial.  Parties determine their own destiny in mediation, and they can often resolve their dispute with guidance from a skilled and qualified mediator.  Mediation is a private and confidential process. At the first mediation session, all participants will sign a Confidentiality Agreement, stating that all discussions and disclosures in mediation remain confidential. 

Unlike a judge, the mediator is not limited by ex parte communication. The mediator can meet (“caucus”) with parties and counsel individually, confidentially discussing underlying issues and concerns. In caucus, the mediator can gain insight as to the parties’ motivations and goals, then use that information to confidentially explore settlement options with each side before any formal offer is made. A successful mediation can salvage an ongoing business relationship between parties who would like to get beyond the present dispute and resume business relations. It can also avoid setting legal precedent, should such an outcome be undesirable.

In the Circuit Court of Cook County, major civil cases seeking damages in excess of $30,000 are eligible for referral to the Major Case Court-Annexed Civil Mediation Program. Many types of cases have been successfully mediated, including:

• Personal injury litigation.
• Complex contract cases.
• Product and professional liability actions.
• Commercial litigation.
• Cases where parties wish to preserve an ongoing relationship.
• Cases with cooperative parties who have been unable to reach settlement on their own.
• Cases involving highly confidential or proprietary information.
• Cases where quick resolution would avoid serious economic harm to parties.
• Cases where a confidential settlement is desirable or where legal precedent should be avoided.

Judges from the Law Division, the Chancery Division and the Probate Division may refer cases into the program. Each division has a local rule that defines which specific case types judges can refer to the program and parties may agree to mediate any issue between them at any time during the litigation.  Each program has a division specific Order of Referral to Civil Mediation which the court will enter upon motion of the parties or on the judge’s recommendation.

Local rules require the parties to name their selected mediator within 21 days. If parties cannot agree upon a mediator, the court will appoint or assist in the appointment of a mediator from the names on the court-certified list. Next, the parties should communicate directly with the mediator to coordinate mediation scheduling and payment information. The first mediation should take place within eight (8) weeks of the Order of Referral and mediation should be concluded within seven (7) weeks thereafter, unless extended by leave of court. Finally, counsel for each party should prepare and submit a case summary to the mediator at least ten (10) days prior to the first mediation session, together with copies of any relevant pleadings, unless some other type of summary information is requested by the mediator.

The mediator may be appointed by the court or selected by the parties. Local Rule allows parties to select and designate a mediator, who may or may not be on the list of court-certified mediators, within three (3) weeks (21 days) of the court’s order referring the case to the program. If parties cannot agree upon a mediator, the court will appoint one from its list of certified mediators. Numerous attorneys have been certified as mediators by the Court’s Selection Committee. A list of these neutrals can be found in each respective division of court that has a court-annexed mediation program in place. Lists of current mediators are available on respective Division pages.

Once a case is referred to mediation, the parties must call the mediator directly to schedule mediation sessions and locations. Mediations are generally held at a site agreed to by the parties or at the mediator’s office. The first mediation session should be held within eight (8) weeks of the court’s Order of Referral.

Mediation cannot be successful unless all essential players are at the negotiating table, ready to talk. Trial counsel must attend the mediation session, as well as each party or their representative with full settlement authority. If insurance is involved, an adjuster with authority to negotiate and recommend settlement should also attend.

Fee arrangements should be made directly with the mediator and should be fully discussed and agreed to before the start of mediation. Unless otherwise agreed to in writing between the parties and the mediator, the mediator is to be compensated at the rate of $250.00 per hour, with each party paying a proportionate share of the total mediation charge. If a person appointed with the assistance of or by the court declines to accept the appointment at a rate of $250.00 per hour, the court will appoint or assist in the appointment of an alternate mediator from a list of court-certified mediators who is willing to accept that rate.

Mediators will give parties direction on what they should prepare for the mediation session. At minimum, each party should prepare and present the mediator with a brief case summary at least ten (10) days prior to mediation, making sure to note in the submission whether any portion of the case summary is to remain confidential. The case summary should also include a list of all pending and resolved claims, and all issues to be addressed in mediation, including the following information:

1. The names of all mediation participants
2. The facts of the occurrence
3. Opinions on liability
4. All damage and injury information
5. Any offers or demands of settlement.

In addition, you should also include copies of all relevant pleadings for the mediator’s review, prior to the first mediation session. Like any other important event in your case, mediation requires serious preparation to be successful. Lack of preparation wastes everyone’s time and may result in an unfavorable result for your client. You also miss the opportunity to impress your opponent with the strength of your case. Don’t view mediation as simply another settlement conference or another hurdle to get to trial. Prepare extensively and use it effectively, to promote a fair and efficient result for your client.

Unlike other court processes, there is no hard or fast rule about the length of a mediation. Complex cases can take a full day negotiation, or several shorter sessions to reach full agreement. Less complex mediations may conclude after just a few hours. Sometimes, the mediator discovers that additional information is needed before a settlement can be reached. In those instances, further mediation sessions may be scheduled to allow parties additional time for discovery or to obtain ultimate settlement authority before the mediation resumes. Local rules provide some guidance as to the timeframe of when a mediation should be complete, allowing for extensions of this time by court order or by agreement of the parties.

Withing fourteen (14) days after the referral order is entered, any party may move the court to dispense with mediation. A case may be inappropriate for mediation if the issues were previously mediated between the same parties; the issue presents a question of law only; or for good cause shown. Under the Rules, parties may also bring a motion to defer mediation, or for interim or emergency relief, if appropriate.

Mediations typically demonstrate high success rates. Since inception, the court-annexed mediation programs have reported that around 50% of cases referred to mediation have resulted in either a full or partial agreement. A mediated settlement can save parties significant time, expense, and effort. Another benefit is that parties get to present their view of the case and events, without the traditional constraints of the trial process. They often vent, clear the air and educate opponents as to case strengths and weaknesses, renewing settlement discussions in the process. Even if a settlement cannot be reached in mediation, many mediated cases settle at a subsequent judicial conference, still avoiding the time and expense of a later trial.

Each division’s Local Rule sets forth sanctions for failure to appear at a duly noticed mediation session without good cause. Certain fees and costs may be assessed against a party failing to appear.

After all mediation sessions are finished, the mediator and all participants sign a “Memorandum of Agreement/No Agreement.” This document will be filed with the court, reporting the outcome of the mediation.

The Memorandum reports one of three outcomes:

1. Whether a full agreement resulted;
2. Whether a partial agreement resulted; or
3. Whether no agreement resulted.

In the event of an agreement, parties can specify whether they intend to file the actual agreement with the court (as an attachment to the Memorandum) or whether they will retain the original agreement themselves, thereby preserving its confidentiality.  

A post-mediation status date will have been previously set by the court. Parties should appear in court on the date to dispose of the case, if settlement terms have been met, or to resume and/or reset their trial schedule, if mediation was unsuccessful.

The court views the mediated agreement as a contract among the parties and basic contract principles apply to its enforcement. Local rules allow “the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies, including entry of judgment on the agreement.  Parties may elect to include a clause in the agreement, requiring them to mediate any subsequent disputes arising from the agreement, prior to resorting to further court action.

Court-Annexed Mediation Supervisor: 

Kimberly Atz O’Brien 
Phone: (312) 793-0125 
kobrien@IllinoisCourts.gov