Ill. Admin. Code tit. 83, § 201.252 - Exceptions to Privilege

Current through Register Vol. 46, No. 15, April 8, 2022

a) There is no privilege under Section 201.250 for a mediation communication that is:

1) in a written agreement resulting from the mediation;

2) available to the public under the Freedom of Information Act [5 ILCS 140 ] or made during a session or a mediation which is open, or is required by law to be open, to the public;

3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or

6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation participant or representative of a participant based on conduct occurring during a mediation.

b) There is no privilege under Section 201.250 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the person seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

1) a court proceeding involving a felony; or

2) except as otherwise provided in subsection (c), a proceeding:

A) to prove a claim arising out of a mediated agreement;

B) to rescind or reform a mediated agreement; or

C) in which a defense is prepared against a claim arising out of a mediated agreement.

c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose. [710 ILCS 35/6 ]

Notes

Ill. Admin. Code tit. 83, § 201.252