Ill. R. Cir. Ct. Lake Cnty. 5-3.27

As amended through September 23, 2024

Rule 5-3.27 - Probate Mediation Program

A. Applicability. This Rule is intended to govern mediation in probate matters. Unless otherwise addressed in these Rules, the provisions of the Uniform Mediation Act (710 ILCS 35/1 et seq.) shall apply.

B.Purpose of Mediation Process. Mediation under these Rules involves a voluntary confidential process where by a neutral mediator, selected by the parties or appointed by the Probate Judge, assists the parties 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.

C. Disputes Eligible for Court-Annexed Mediation. Except as hereinafter provided, the Judge may order any contested probate matter referred to mediation. In addition, the parties to any such matter may file a written stipulation to mediate any issue between them at any time. Such stipulation shall be incorporated into an Order of Referral.

D.Mediator Qualifications

1.List of Probate Mediators. The Judge shall maintain a list of probate mediators who have been certified by the Court and who have registered for appointment. The list shall be submitted to the Judge, who shall have the discretion to include or remove persons from the list at any time or to waive any of the requirements below, when necessary to promote the highest standards of competency. An applicant denied inclusion on or removed from the list, may appeal the decision in writing within ten days to the Chief Judge. The Chief Judge shall decide the appeal after an opportunity for the applicant or member to be heard. The decision of the Chief Judge shall be final. The list shall be reviewed in every even numbered year.

2.Certification. Any person who meets the following criteria is eligible to apply to serve as a mediator for the purposes of this Rule, if the applicant:

a. Completes a forty hour mediation training program approved by the Chief Judge of the Nineteenth Judicial Circuit; and,

b. Is a member in good standing of the Illinois Bar with at least eight years of practice or a retired Judge; and,

c. Is of good moral character; and,

d. Submits an application that is approved by the Chief Judge or her/his designee; and,

e. Maintains an office in the Nineteenth Judicial Circuit and has a substantial concentration of her/his practice in probate; and,

f. Provides satisfactory proof of professional liability insurance covering the mediation process to the Judge.

3.Continuing Legal Education. An approved mediator shall attend ten hours of continuing education every two years on subjects related to probate, trusts, guardianships, taxation or other areas relevant to practice in probate. The mediator shall be responsible to provide proof of attendance by way of affidavit, of the specific course, seminar, or class attended to the Judge at least thirty days prior to her/his two-year anniversary date of certification.

4.Mediator General Standards. In each case, the mediator shall comply with such general standards as may, from time to time, be established and promulgated in writing by the Chief Judge of the Nineteenth Judicial Circuit.

5.Decertification of Mediators. The eligibility of each mediator to retain the status of a certified mediator shall be periodically reviewed by the Chief Judge and in any event no longer than three years after date of appointment. Failure to adhere to this general Order governing mediation or the general standards provided for above may result in the decertification of the mediator by the Chief Judge or her/his designee.

6.Special Programs. From time to time, mediators may be required to attend specific trainings offered or sponsored by the Nineteenth Judicial Circuit, the Bar Association or other individuals or organizations.

7.Low Income Cases. Each calendar year, a mediator shall mediate two low-income cases, as identified by the Probate Court, at a reduced fee.

E.Appointment of the Mediator.

1.Appointment by Stipulation. In the Order of Referral or within fourteen days of the entry of the Order of Referral, the parties may agree upon a stipulation with the Court designating:

a. A mediator certified by the Nineteenth Judicial Circuit to serve as a Probate mediator; or

b. A mediator who does not meet the certification requirements of these Rules but who, in the opinion of the parties and upon review by and approval of the Judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.

2.Appointment by Court. If the parties cannot agree on a mediator within fourteen days of the entry of the Order of Referral, the Petitioner's attorney (or another attorney agreed upon by all attorneys) shall so notify the Judge within the next seven days and the Court shall appoint a certified mediator selected by rotation or by such other procedures as may be adopted by Administrative Order of the Chief Judge.

3.Disqualification of a Mediator. Any party may move to enter an Order disqualifying a mediator for good cause. If the Court rules that the mediator is disqualified from hearing a case, an Order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators from disqualifying themselves or refusing an assignment. The time for mediation shall be tolled during any periods in which a Motion to Disqualify is pending.

F. Motions to Dispense, Defer or for Emergency Relief.

1.Motion to Dispense with Mediation. A party may move, within fourteen days after the entry of the Order of Referral, to dispense with mediation if:

a. The issue to be considered has been previously mediated between the same parties pursuant to Local Court Rules of the Nineteenth Judicial Circuit;

b. The issue presents a question of law only;

c. Other good cause is shown.

2.Motion to Defer Mediation. Within fourteen days of the Order of Referral, any party may file a Motion with the Court to defer the mediation. The movant shall set the Motion to defer the mediation proceeding for hearing prior to the scheduled date for mediation. Notice of the hearing shall be provided to all interested parties, including any mediator who has been appointed. The Motion shall set forth in detail, the facts and circumstances supporting the Motion. Mediation shall be tolled until disposition of the Motion.

3.Interim or Emergency Relief. A party may apply to the Court for interim or emergency relief at any time. Mediation shall continue while such a Motion is pending absent a contrary Order of the Court or a decision of the mediator to adjourn pending disposition of the Motion.

G. Scheduling of Mediation.

1.Conference or Hearing Date. Unless otherwise ordered by the Court, the first mediation conference shall be held within eight weeks of the Order of Referral.

2.Notice of Date, Time and Place. Within twenty-eight days of being advised of the entry of an Order of Referral, the mediator shall notify the parties in writing of the date and time of the mediation conference. Unless all parties and the mediator otherwise agree, all probate mediations will be held at the Lake County Arbitration Center, 415 Washington Street, Suite 106, Waukegan, IL 60085.

H. Mediation Procedures.

1.Mediator. The mediator shall at all times be in control of the mediation and the procedures to be followed in mediation.

2.Mediation Summary. At least seven days before the conference, each side shall present to the mediator a brief (one page), written summary of the case containing a list of issues as to each party. If the attorney filing the summary wishes its contents to remain confidential, she/he should advise the mediator in writing at the same time this summary is filed. The summary shall include the names of all participants in the mediation, the facts underlying the dispute, statement of the law, positions advocated by the parties and any offers or demands regarding settlement.

3.Attendance at a Mediation Conference. All parties, attorneys, representatives with settlement authority and other individuals necessary to facilitate settlement of the dispute, who are identified in the Order of Referral, 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:

a. The party or its representative having full authority to settle without further consultation; and,

b. The party's counsel of record, if any.

Upon Motion, the Court may impose sanctions against any party or attorney who fails to attend the mediation conference and participate in good faith, as provided above, including, but not limited to, mediation costs and reasonable attorney fees relating to the mediation process.

4.Adjournments. The mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned conference. No further notification is required for parties present at the adjourned conference.

5.Counsel. Counsel shall be permitted to communicate privately with their clients.

6.Communication with Parties. The mediator may meet and consult privately with each party and her/his representative during the mediation process.

7.Termination of Mediation. Mediation shall be completed within seven weeks of the first mediation conference unless extended by the Order of the Court or by stipulation of the parties. Mediation shall terminate prior to the end of seven weeks in the following circumstances:

a. All issues referred for mediation have been resolved.

b. The parties have reached an impasse, as determined by the mediator.

c. The mediator concludes that the willingness or ability of any party to participate meaningfully is so lacking that an agreement on voluntary terms is unlikely to be reached by prolonging the negotiations.

8.Report of Mediator. Within fourteen days after the termination of mediation for any reason, the mediator shall file with the Court a report in a form prescribed by the Chief Judge as to whether or not an agreement was reached by the parties. The report shall be signed by the mediator and shall designate, "full agreement," "partial agreement" or "no agreement." A copy of the report must be sent to the parties and to the Arbitration Center.

9.Sanctions. In the event of any breach or failure to perform under the settlement agreement, the Court upon Motion may impose sanctions, including costs, attorney fees, or other appropriate remedies including entry of judgment on the agreement.

10.Discovery. Whenever possible, the parties are encouraged to limit Discovery (prior to completing the mediation process) to the development of the information necessary to facilitate a meaningful mediation conference. Discovery may continue throughout mediation.

11.Confidentiality of Communications. All oral or written communications in a mediation conference, other than executed settlement agreements, shall be exempt from Discovery and shall be confidential and inadmissible as evidence in the underlying cause of action unless all parties agree otherwise. Evidence with respect to alleged settlement agreements shall be admissible in proceedings to enforce the settlement. Subject to the foregoing, unless authorized by the parties, the mediator may not disclose any information obtained during the mediation process.

I.Compensation of the Mediator.

1.Hourly Fee. The mediator shall charge an hourly fee to the parties, which they shall pay in equal shares unless the parties otherwise agree or the Court orders a different payment distribution. This hourly fee shall be paid to the mediator at the time of each session for the time spent in mediation at the session.

2.Advance. In addition to the hourly fee, the mediator may request an advance deposit covering up to two hours' time to be paid at the first session which shall be due simultaneously with the Mediation Summary. Such deposit may be applied to services rendered by the mediator outside of the mediation session, such as telephone conferences, correspondence, consultation with attorneys or other individuals, preparation of the Mediator Report and any other work performed by the mediator on the behalf of the parties.

3.Additional Fees. Any additional fees that exceed the deposit or the fees collected at the time of sessions for services rendered by the mediator shall be paid as required by the mediator.

4.Suspension of Mediation. In the event payments are not made as required under this Rule or otherwise agreed to by the mediator and the parties, the mediation process may be suspended by the mediator pending compliance.

5.Expense of Administration. Any fees charged to an estate shall be deemed an expense of administration.

6.Pro Bono Cases. If any party has been granted leave to sue or defend as an indigent person pursuant to Supreme Court Rule 298, the Probate Judge shall appoint a mediator who shall serve pro bono as to that party. Any such appointment shall be credited toward the obligation in LCR 5-3.27(D)(7), unless the indigent party receives an award sufficient, as determined by the Probate Court, to pay the mediator's fee.

J.Immunity. Mediators shall be entitled to such immunity as shall be provided by law.

K.Mechanism for Reporting. The Clerk of the Circuit Court shall keep and maintain compiled statistics and records on all cases referred to mediation; and shall file reports with the Administrative Office of the Illinois Courts, as directed by the Chief Judge.

L. Supervising Judge for Mediation of Probate Cases. The Presiding Judge of the Civil Division, or such other Judge as appointed by the Chief Judge, shall be the Supervising Judge for Mediation of Probate cases.

M.Duties of Probate Judge. The duties of the Probate Judge shall include the following:

1. Approve or appoint the mediator.

2. Hear motions to interpret all mediation rules.

3. Hear motions to disqualify a mediator.

4. Hear motions to advance, postpone or defer a mediation conference.

5. Hear all motions or petitions regarding the mediator's compensation.

N.Authority of the Court. Nothing in this Rule shall limit the Court's authority to enter any Order it deems appropriate on its own Motion or any party's Motion.

Ill. R. Cir. Ct. Lake Cnty. 5-3.27

Amended effective 10/24/2016.