(A) As an alternative to traditional litigation in the resolution of controversies, mediation provides a flexible, non-binding, expeditious, and expense-saving procedure in which a neutral third party, the mediator, facilitates resolution. Part 21 establishes a confidential process of court-annexed mediation in the Chancery Division of the Circuit Court of Cook County.
(B) The mediator will assist the litigants in reaching reconciliation, agreement, or understanding among them. In this regard, the role of the mediator is to assist in identifying the issues, reducing misunderstandings, exploring and clarifying the parties’ interests and priorities, and identifying and exploring possible solutions that will satisfy the interests of all parties and resolve some or all of the issues in dispute. Any agreement reached by the parties is to be based on the autonomous decisions of the parties and a mediator may not impose his or her own judgment on the issues. Parties and their representatives are required to mediate in good faith, but are not compelled to reach any agreement. A person approved by the court to act as a mediator under this Rule will, pursuant to Supreme Court Rule 99, have judicial immunity in the same manner and to the same extent as a judge.
[Dated July 29, 2013, effective August 1, 2013.]
(A) Referral by Judge or by Stipulation
The judge to whom a matter is assigned may order any contested civil matter pending in the General Chancery Division referred to mediation by entering the General Chancery Court-Annexed Mediation Order of Referral. The Order of Referral may be entered by the court sua sponte, pursuant to motion, or by stipulation of the parties. The Order of Referral will include stipulations and the allocation of the mediation expenses subject to modification by agreement of the parties.
(B) Motion to Set Aside or Modify Order of Referral
No earlier than seven days after entry of the Order of Referral, a party may move to set aside or modify the order on good cause shown. The court will exercise its discretion in considering a motion to set aside or modify the order.
[Dated July 29, 2013, effective August 1, 2013.]
(A) Appointment of the Mediator
(1) The mediator may be selected by stipulation of all parties or by appointment of the court pursuant to Rule 21.03(A) 2. A mediator selected by the parties need not be on the court-certified list of mediators.
(2) If the parties cannot agree on a mediator, the parties will inform the court of their failure to reach agreement. The court then will assist in the appointment of a court-certified mediator from the list of court-certified mediators or the Center for Conflict Resolution. When appointing a mediator from the Center for Conflict Resolution, the court will consider the following factors: financial hardship, the need of the parties to preserve a continuing relationship, the need for an expeditious resolution of the matter, whether there exists matters of community concern, and any other circumstance that would cause the parties to be unduly burdened.
(3) Neither participation in any training program nor inclusion in the court’s list of certified mediators guarantees the selection of any particular individual as a mediator for any case.
(B) Compensation of the Mediator
Unless the parties agree or the court orders otherwise, the parties and the mediator will establish fees and out-of-pocket expenses of the mediation and each party shall pay a proportionate share of the total charges of the mediator. All compensation due to a mediator will be collected by the mediator. A court appointed mediator’s fee shall be subject to appropriate order of judgment for enforcement. The Center for Conflict Resolution, a not-for-profit organization, will mediate referred cases without a charge to the parties as a service to the Circuit Court. The Center for Conflict Resolution shall comply with the Illinois Not-For-Profit Dispute Resolution Center Act, 710 ILCS 20/1, et seq.
(C) Scheduling of Initial Mediation Session
Unless otherwise ordered by the court, the first mediation session shall be held within five weeks of the date of entry of the Order of Referral. When the date, time, and place of the initial mediation session have been agreed, the mediator shall send written confirmation of the date, time, and place to all parties as well as of any other requirements of the mediation.
(D) Submissions to Mediator
Unless the mediator requests a different procedure, not less than 10 days before the initial mediation session, each party shall present the mediator with a brief written summary of the case containing a list of all pending and resolved claims and all issues to be addressed in mediation. The summary shall state the following information: (i) Names of all mediation participants, including all counsel, parties, and other persons who are expected to attend any scheduled mediations; (ii) Relevant facts in the action; (iii) Key legal issues in the action; (iv) Pertinent factors relating to settlement; (v) All damage and injury information; (v) Any offers or demands of settlement; and (iv) Party’s initial settlement position.
All oral and written communications with the mediator at any time shall be deemed confidential and privileged in accordance with the provisions of the Uniform Mediation Act 710 ILCS 35/1 (See Rule 21.07 of the Rules of the Circuit Court of Cook County). Any party who wishes all or part of its contents to remain confidential from other parties shall inform the mediator, in writing, at the time the summary is tendered and mark which portions are confidential.
(E) Time for Completion of Mediation
Mediation will be completed within seven weeks of the first mediation session unless extended by Court Order.
(F) Mediator Pro-Bono Requirement
Each court-certified mediator will agree to mediate at least one case per year without compensation if the court has determined that mediation might be beneficial and that none of the parties has the resources to compensate a mediator.
[Dated July 29, 2013, effective August 1, 2013.]
(A) Persons Required to Be Present
If a party is a public entity, that party shall be deemed to appear at a mediation session by the physical presence of: (a) a representative of the party with full authority to negotiate on behalf of the party and to recommend settlement to the appropriate decision-making body; and (b) the party’s counsel of record. With respect to parties who are not public entities, unless otherwise stipulated by all parties or ordered by the court, a party shall be deemed to appear at a mediation session if all of the following persons are physically present:
(1) The party, or in the event a party is not a natural person, a representative of a party having full authority to negotiate a settlement on behalf of the party or a representative of an insured party having full authority to negotiate on behalf of the party; and
(2) The party’s counsel of record, if any; or
(3) In the mediation of a case involving a putative or certified class action, the court has the discretion to determine whether the class representative will be required to attend.
If a party fails to appear at mediation session without good cause, the court on motion may impose sanctions against the party failing to appear. Such sanctions may include an assessment of the attorneys’ fees incurred by the other parties in preparing for and attending the mediation session and the fees of the mediator for preparing for and attending the mediation session.
(B) Communication with Parties
The mediator may, during the course of the mediation, speak privately to one or more of the parties outside the presence of other parties.
(C) Counsel
Parties and their respective counsel shall be permitted to confer privately at any time.
(D) Adjournments
The mediator may adjourn the mediation session at any time and may set times for reconvening the adjourned session. The mediator shall confirm in writing to all parties the date, time, and place for reconvening the adjourned session.
(E) Termination of Mediation
At any time on the motion of any party, the court may enter an order terminating mediation for good cause shown.
[Dated July 29, 2013, effective August 1, 2013.]
A) Events Constituting Completion of Mediation
Mediation will be considered to have been completed only on the happening of one of the following events:
(1) The entry by the parties into a written full or partial settlement agreement;
(2) Certification by the mediator that the mediation has been concluded without the parties reaching any agreement; or
(3) Entry of an order by the court, on the motion of any party, terminating the mediation for good cause shown.
(B) Full or Partial Agreement
All agreements reached, whether full or partial, will be reduced to writing and signed by each of the parties. The agreement is enforceable in the same manner as any other written contract.
(C) Completion of Mediation on Entry into Written Settlement Agreement or Partial Written Settlement Agreement
On completion of the mediation, the parties will file Form 4 (Memorandum of Agreement/ No Agreement) and the mediator will file Form 5 (Mediator Report) with the court.
[Dated July 29, 2013, effective August 1, 2013.]
The court will decide, in its discretion, whether and to what extent discovery or other proceedings will continue while the case is in mediation.
[Dated July 29, 2013, effective August 1, 2013.]
(A) General Rule of Mediator Confidentiality
All oral and written communications with the mediator will be deemed confidential and privileged in accordance with the Uniform Mediation Act, 710 ILCS 35/1, et seq. All such communications shall be exempt from discovery and inadmissible as evidence in any action or proceeding. But, evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation session.
(B) Privilege against Disclosure, Waiver and Preclusion of Privilege, and Exceptions to the Privilege
The privilege against disclosure, the waiver and preclusion of privilege, and the exceptions to the privilege will be governed in accordance with the Uniform Mediation Act, 710 ILCS 35/1, et seq.
(C) Exceptions to General Rule of Mediator Confidentiality
The general rule of confidentiality does not apply:
(1) In situations where professional misconduct reporting rules, such as the Illinois Rules of Professional Conduct, require reporting of a mediation communication;
(2) As necessary to defend against a lawsuit or claim for malpractice or other misconduct; or
(3) In the case of a threat of a prospective crime or of serious imminent harm to any person.
In these circumstances, the reporting party may testify to or report only the necessary information to the appropriate authorities. The mediator will not be compelled to provide evidence of a mediation communication in any lawsuit or claim against an attorney or party participating in the mediation.
(D) Disputes Regarding Settlement Agreements
In the event of a dispute over a settlement agreement, a party may move the court to enforce the settlement agreement. Parties to the mediation may waive confidentiality to the extent necessary to testify at the hearing. The mediator may testify only in accordance with the Uniform Mediation Act, 710 ILCS 35/1, et seq.
[Dated July 29, 2013, effective August 1, 2013.]
(A) Court-Certified Mediators
(1) The Administrator of the mediation program will maintain the list of mediators who have registered for and been certified by the Presiding Judge of the Chancery Division for appointment. For certification, the applicant must fill out Form 1 and certify that he or she meets one of the following criteria:
(i) Currently a mediator in another State of Illinois Court Annexed Civil Case Mediation Program in Cook County or in another County in the State of Illinois;
(ii) Served as a mediator on at least 10 occasions in major civil cases; or
(iii) Successfully completed mediation training in a program consisting of 30 or more hours of training approved by the Presiding Judge of the Chancery Division of Cook County.
(2) In addition, the applicant must have held an active license to practice law in the State of Illinois for at least 10 years and be one of the following:
(i) A lawyer registered as active and in good standing with the Illinois Attorney Registration and Disciplinary Commission; or
(ii) A retired judge or retired lawyer registered as retired or inactive to practice law and in good standing with the Illinois Attorney Registration and Disciplinary Commission.
(3) Every certified mediator must submit an updated application by June 30th in each odd numbered year.
(B) Mediator General Standards
In each case, the mediator will comply with general standards as may be promulgated in writing by the Presiding Judge of the Chancery Division. During every two year period that a mediator is certified with the court, a certified mediator will complete at least four (4) hours of Cook County Mandatory Arbitration and Mediation Continuing Education Seminars or equivalent CLE seminars to maintain his or her certification. Certified mediators will report the completion of the CLE requirement through a form designated by the court.
(C) Decertification of Mediators
The eligibility of each mediator to retain the status of a certified mediator may be periodically reviewed by the Presiding Judge of the Chancery Division. Failure to adhere to these Rules governing mediation or the general standards provided for above may result in the decertification of the mediator by the Presiding Judge.
[Dated July 29, 2013, effective August 1, 2013.
Pursuant to Supreme Court Rule 99, the Circuit Court of Cook County through the Office of the Chief Judge will keep and maintain statistics and records on all cases referred to mediation and will file reports with the Administrative Office of the Illinois Courts as directed by the Chief Judge.
[Dated July 29, 2013, effective August 1, 2013.]
The following forms will be used in conjunction with court-annexed mediation:
Form 1: Mediator Application and Self Certification of Qualifications
Form 2: Order of Referral to Court-Annexed Mediation
Form 3: Confidentiality Agreement and Nonrepresentation Acknowledgment
Form 4: Memorandum of Agreement/No Agreement
Form 5: Mediator Report, pursuant to Supreme Court Rule 99 as a mechanism for reporting to the Supreme Court on the mediation program.
Form 6: Evaluation Form, which will be kept confidential and only be used for statistical and evaluative purposes.
[Dated July 29, 2013, effective August 1, 2013.]
The court will collect information regarding the effectiveness of the mediation program. To facilitate this activity, mediators will supply attorneys with Form 6 at the conclusion of the mediation. Attorneys and their clients are encouraged to complete Form 6 and return it to: Mandatory Arbitration Center, 222 N. LaSalle St., Chicago, Il 60601 within 10 days of the final mediation session. Other forms may be promulgated by the Presiding Judge to aid reporting or evaluating the mediation process as required by Supreme Court Rule 99.
[Dated July 29, 2013, effective August 1, 2013.]
The Presiding Judge of the Chancery Division may appoint an advisory committee of other judges, members of the bar, and others to assist in the implementation of these rules.
[Dated July 29, 2013, effective August 1, 2013.]
In cases where a litigant can only communicate in a language other than English, the court will make a good faith effort to provide a mediator, and a pro bono attorney where applicable, and/or an interpreter who speaks the language of the litigant who needs English assistance.
[Dated July 29, 2013, effective August 1, 2013.]
(A) Assignment of Mortgage Foreclosure and Mechanics Lien Cases.
The judge to whom a matter is assigned may order any contested matter pending in the Mortgage Foreclosure/Mechanics Lien Section of the Chancery Division to mediation and, except as provided in sections 21.14(B)-(D), the provisions set forth in Sections 21.01 through 21.13 will apply. All residential mortgage foreclosure cases will be referred to mediation using Form 7 (Mortgage Foreclosure Mediation Referral Order). All non-residential mortgage foreclosure cases and all mechanics lien cases will be referred to mediation using Form 2 (Order of Referral to Court-Annexed Mediation).
(B) Definition of “Residential Mortgage Foreclosure.”
For purposes of this mediation rule, “residential mortgage foreclosure” means a mortgage foreclosure case pending in the Circuit Court of Cook County, Chancery Division, Mortgage Foreclosure/Mechanics Lien Section against property that is: (1) a single family home, single family condominium or, a property of four (4) units or less; and (2) the mortgagor resides in the property as the mortgagor’s principal residence. All other properties will be considered non-residential for purposes of this mediation rule.
(C) Non-Residential Mortgage Foreclosure Cases.
All non-residential mortgage foreclosure cases will comply with and be referred to mediation under the provisions set forth in sections 21.01 through 21.14.
(D) Residential Mortgage Foreclosure Cases.
Provisions in Sections 21.14(D)(1)-(10) are applicable to residential foreclosure cases.
(1) Actions To Be Taken By Defendant Before Requesting Mediation.
(i) HUD-Certified Housing Counseling Required.
(a) Absent an exception listed in (b) below, any defendant in a residential mortgage foreclosure case must meet with a HUD-certified housing counselor prior to presenting a motion for mediation. This provision applies to self-represented defendants and to any defendant who is represented by a private attorney. Access to local HUD-certified housing counselors is provided by the court at no cost to the defendant. A defendant may call a helpline overseen by the Court to secure an appointment with HUD-certified housing counseling agency contracted to provide services for residential mortgage foreclosure cases in Cook County.
(b) Exceptions to the HUD-Certified Housing Counseling Requirement.
The housing counseling services provided by the following entities will be sufficient for housing counseling purposes and exempt the defendant from the HUD-certified housing counseling requirement set forth in Section (D)(1)(i).
(1) Government Agencies. A defendant in a residential mortgage foreclosure case who is receiving housing counseling at no cost to the defendant from the Office of the Illinois Attorney General or another state or federal agency is exempt from the HUD-certified housing counseling requirement.
(2) Civil Legal Service Providers. A defendant in a residential mortgage foreclosure case who is receiving civil legal services and housing counseling at no cost to the defendant from a civil legal service provider, where the service provider is representing the defendant for the duration of the foreclosure, is exempt from the HUD-certified housing counseling requirement. For purposes of this exemption, “civil legal services,” and “civil legal service provider” must comply with the definitions under the Illinois Equal Justice Act, 30 ILCS 756/10 (2012).
(ii) Answer and Appearance Required.
Any defendant in a residential mortgage foreclosure must file an answer and appearance with the Clerk of the Circuit Court before or at the time of requesting mediation.
(iii) Meeting with an Attorney Before Court Appearance.
Any self-represented defendant in a pending residential mortgage foreclosure case has the option to meet with a legal aid attorney provided through the Chancery Division Advice Desk, at no cost to the defendant, for legal advice and assistance in preparing necessary paperwork.
(2) Written Motion Required.
Any party requesting mediation in a pending residential mortgage foreclosure mediation case must present a written motion to the court. The motion must be certified pursuant to Section 1-109 of the Illinois Code of Civil Procedure, 735 ILCS 5/1-109 (2012), or supported by an affidavit that complies with Illinois Supreme Court Rule 191. The motion must identify compliance with the sections 21.14(B) and 21.14(D)(1)(i)-(iii).
(3) Document Exchange and Review Before Referral to Mediation Required.
Parties in residential mortgage foreclosure cases must exchange and review all documents relating to any possible settlement agreement prior to any referral to mediation. A failure by the defendant to provide the plaintiff with the required financial documents for a loan modification or other settlement agreement may result in the denial of a request for mediation. A failure by the plaintiff to review the completed financial documents timely submitted by the defendant may result in a stay of the foreclosure case until a review has occurred. Document exchange may be ordered by the court at the initial case management hearing or at any other court hearing thereafter at the court’s discretion.
(4) Appointment of the Mediator and Scheduling of the Mediation Session for a Residential Mortgage Foreclosure Case.
All provisions of Section 21.03 shall apply to residential mortgage foreclosure cases except as provided in Sections 21.14(D)(4)(i)-(iv):
(i) Appointment of the Mediator.
In all residential mortgage foreclosure cases, the court may automatically appoint the Center for Conflict Resolution as the mediator to provide mediation services at no cost to either party. If all parties agree to the appointment of a court-certified mediator that is not the Center for Conflict Resolution, the court may appoint a court-certified mediator other than the Center for Conflict Resolution. If the parties agree to the appointment of a court-certified mediator, all parts of Section 21.03, including compensation of the mediator, apply to the mediation.
(ii) Scheduling of Initial Mediation Session.
The first mediation session for a residential mortgage foreclosure case must occur within four (4) months of entry of the order of referral to mediation. This time for scheduling the first mediation session may be adjusted by the court for good cause shown.
(iii) Time for Completion of Mediation Session.
Mediation will be completed within three (3) months of the first mediation session unless extended by court order, for good cause shown.
(iv) Cases Referred to Mediation Before August 1, 2013 Amendment.
The time for initial mediation sessions and for completing mediation sessions does not apply retroactively to residential mortgage foreclosure cases referred to mediation before the effective date of this rule.
(5) Appointment of Pro-Bono Legal Representation at the Mediation Session.
The court may appoint Chicago Volunteer Legal Services (CVLS) in a limited capacity to represent an otherwise unrepresented defendant at the mediation session(s) at no cost to the defendant. Defendant may waive this appointment and proceed with a private attorney or as a self-represented defendant. CVLS may make a motion to terminate its appointment for mediation for good cause shown.
(6) Conduct of the Mediation Session.
(i) Applicability of Section 21.04.
Except as provided in Section 21.14(D)(6)(ii), all parts of Section 21.04 apply to residential mortgage foreclosure cases that are referred to mediation.
(ii) Persons Required to be Present.
In addition to the requirements set forth in Section 21.04(A), the representative of the lender may appear by telephone for the mediation session at the court’s discretion. Appearance by telephone does not exempt any requirement that the representative attending the mediation have full authority to negotiate a settlement on behalf of the lender.
(7) Completion of Mediation.
All parts of Section 21.05 apply to residential mortgage foreclosure cases. In addition to the requirements set forth in Section 21.05(A), if the parties have not reached an agreement after two (2) mediation sessions and the parties cannot agree whether to hold a third or subsequent mediation session, either or both sides may file a motion to terminate the mediation pursuant to Section 21.05(A)(3), or a motion to return to the trial call, or an equivalent motion, with the court. Additionally, the mediator may file a Form 4 (Memorandum of Agreement/No Agreement) and a Form 5 (Mediator Report) with the court explaining the parties have not reached agreement and could not agree to further mediation sessions.
(8) Proceedings During Mediation.
No judgment of foreclosure will be sought or entered in a residential mortgage foreclosure case until completion of the mediation. In the event a residential mortgage foreclosure case was referred to mediation after entry of the judgment of foreclosure, no sale will be conducted or approved until completion of the mediation. Section 21.06 controls all other proceedings in residential mortgage foreclosure cases.
(9) Proceedings After Mediation.
In the event the mediation is completed with no agreement and the mortgage foreclosure is set to proceed in due course, the plaintiff must submit a copy of Form 7 (Mortgage Foreclosure Mediation Status Order), showing that mediation has been terminated, with courtesy copies of any motion for entry of judgment of foreclosure or any motion for approval of sale.
(10) Forms
The following forms will be used in addition to the forms identified in Section 21.10:
Form 7: Mortgage Foreclosure Mediation Referral Order
Form 8: Mortgage Foreclosure Mediation Status Order
(E) Training for Judges, Key Court Personnel, and Volunteers.
All judges, key court personnel, and volunteers providing direct services to the court will be trained on appropriate mediation services for Chancery Division cases, including residential mortgage foreclosure cases:
(1) Judges and Key Court Personnel.
Training will be provided for all judges and key court personnel assigned to mortgage foreclosure mediation cases. “Key court personnel” may include judicial law clerks, secretaries, student externs, and circuit court clerks, among other staff members.
(i) The training will consist of seminars covering the following topics:
(a) Mortgage foreclosure law and changes to the law;
(b) Mortgage foreclosure regulations;
(c) Mortgage foreclosure defenses;
(d) Mortgage foreclosure judgments, orders, and court procedures;
(e) Mortgage foreclosure mediation issues;
(f) Best practices for mortgage foreclosure and mediation; and
(g) Any other mortgage foreclosure related issues that may periodically arise.
(ii) Materials will be distributed that include, but not limited, the following materials:
(a) Mortgage foreclosure law materials including information on recent state and federal regulations;
(b) Courtroom Procedures; and
(c) Mediation forms and Orders used in court.
(iii) Judges will additionally receive, upon entering the Mortgage Foreclosure/Mechanics Lien Section, a copy of the bench book (to be updated periodically), and a minimum 2 weeks of continuous training during which the judge will observe proceedings and be tutored and mentored by fellow and experienced judges about law and procedures utilized in the Section.
(2) Volunteers Providing Direct Services to the Court.
All volunteers providing direct services for the court for mortgage foreclosure mediation shall demonstrate that they are adequately trained. Volunteers may demonstrate adequate training by providing the court with a certificate of training from an accredited institution, such as an ABA accredited law school or a court approved mediation training institution, which covers the topics set forth Section 21.14(E)(1)(i).
(F) Funding for Mediation and Mediation-Related Services for Residential Mortgage Foreclosure Cases.
Funding for mortgage foreclosure mediation is provided by the Cook County Board of Commissioners at no cost to the parties. This funding covers dedicated housing counseling services, dedicated pro bono legal aid, mediation services and some court staff.
[Dated July 29, 2013, effective August 1, 2013.]