Hon. Lisa R. Curcio, (Ret.), senior mediator and arbitrator at ADR Systems, recently presented on the fundamentals of mediation for the Chicago Bar Association’s Construction Law and Mechanics Lien Subcommittee. Presenting alongside two other dispute resolution practitioners, Judge Curcio spoke first and reviewed how the Illinois Uniform Mediation Act (710 ILCS 35/1 et.seq) provides broad privileges against disclosure and rights to confidentiality.
“The Act protects parties, their attorneys, non-party participants and mediators from being forced to testify about communication that occurs during mediation,” explained Judge Curcio. “Under this protection, parties and mediators can engage in frank discussions to work toward settlement.”
These protections form a bedrock upon which mediation can function at its best: as a private, party-empowered, extra-judicial means to resolve disputes quickly and in a cost-effective manner.
Parties involved in construction and mechanics lien disputes especially benefit from these privileges. As mediation is less adversarial in nature, it presents parties the opportunity to create custom solutions to their dispute together, ideally preserving business relationships and saving time outside the backlog of cases within the judiciary.
Additionally, construction and mechanics lien disputes often involve many parties and complex discovery. Mediation can remove much of the pressure and frustration that would otherwise be felt during litigation in a courtroom, as explained in our brochure, Mediation: What to Expect. When compared to litigation, mediation can save time and money by settling disputes more quickly. That is especially true in complex cases. Mediation also gives parties more control over the outcome of their dispute – much more control than they would have in court.
The Illinois Uniform Mediation Act also enumerates exceptions to the privileged nature of mediation communications, though they are few. Some of these exceptions may involve mediation communications that:
- Demonstrate intent to commit bodily harm or to plan or commit a crime
- Seek to “prove or disprove a claim or complaint of professional misconduct or malpractice” against a mediator, mediation party or nonparty participant, among others
- And seek to “prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the case is referred by a court to mediation and a public agency participates”
These exceptions serve a practical purpose: protecting the safety of mediation participants and the efficacy of the process they have entered to collaboratively resolve their dispute. Even so, these exceptions very rarely apply; in almost all instances, parties to a dispute can keep the totality of the details of their mediation and, ultimately, the terms of their settlement private.
“Confidentiality is a cornerstone of mediation,” said Judge Curcio, “and for construction and mechanics lien attorneys, it’s often the better route to resolution.”
Hon. Lisa R. Curcio, (Ret.) brings an abundance of real-world experience – real estate, business and banking — to her mediation and arbitration practice. She spent 15 years as a Chancery Judge, presiding over mechanics liens, construction contracts and construction defect cases. Judge Curcio is regarded as an energetic and pragmatic neutral who helps parties construct suitable solutions to their disputes.
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