The Collaborative Process Act, 750 ILCS 90, took effect 1/1/18. It sets up a system by which parties who are represented can resolve issues outside of court in family law disputes.
The parties sign a collaborative process participation agreement where each person has to agree to discharge their lawyer if the process fails. Collaborative process matters can only pertain to issues that arise under family law or domestic relations, like:
- Marriage, divorce, dissolution, annulment, legal separation,
- Property distribution,
- Parental responsibilities,
- Maintenance and child support,
- Parentage, or
- Pre-marital, post-marital, and post-marital agreements.
Collaborative process matters do not include issues that arise under the Juvenile Court Act of 1987 or that are under investigation by the Department of Children and Family Services.
A collaborative process participation agreement must meet the following requirements:
- Be in a record,
- Be signed by the parties,
- State the parties' intention to resolve a dispute,
- State the parties' intention to discharge their lawyers and law firms if the collaborative process fails,
- Describe the nature and scope of the issue,
- Identify each collaborative process lawyer and who the lawyer represents, and
- Contain a statement by each lawyer confirming representation.
Parties may agree to include more provisions in the agreement as long as the terms do not conflict with the law.
Beginning and ending a collaborative process
A collaborative process begins when the parties sign the collaborative process participation agreement. A court may not order someone to participate in a collaborative process if the party does not want to.
The collaborative process ends when:
- Both parties sign a record that says the issue is resolved;
- Both parties sign a record that that says the issue cannot be resolved; or
- Someone terminates the process.
The collaborative process will terminate when:
- A party notifies the other party that the process has ended;
- A party unilaterally asks a court to resolve the issue;
- A party discharges a collaborative process lawyer;
- A lawyer withdraws from further representing party; or
- A issue is no longer a collaborative process matter.
A party can terminate the process with or without cause. If a lawyer is discharged or withdraws representation, the lawyer must give prompt notice to everyone who is part of the agreement. The collaborative process will continue if the unrepresented party finds another lawyer within 30 days after the notice. The parties must sign a new record that states the following:
- The parties consent to continue the process;
- The original agreement has been amended to identitfy the successor lawyer; and
- The successor lawyer confirms representation of the party.
Court proceedings when there is a collaborative process
Parties in a pending court case may sign a collaborative process participation agreement to try to resolve an issue related to the proceeding by filing a notice of it with the court. The notice serves as an application to stay the proceeding. The court may require the parties to provide a status report on the collaborative process. The court will only consider the following information in a status report:
- Whether the process is ongoing or ended; and
- How long the parties think the process will take.
If the collaborative process ends, the parties must promptly file a notice with the court and the stay will be lifted. The court may dismiss the proceeding if there is a delay or for failure to prosecute. Both parties will be notified and have an opportunity to be heard before a case is dismissed.
The court must approve an agreement reached through a collaborative process in order for it to be enforceable.
Disclosures and professional responsibility
Any disclosure of information in a collaborative process is voluntary and informal. On the request of the other party, a person should make timely, full, candid, and informal disclosure of information related to the collaborative process matter without formal discovery. Parties should also make sure information that has materially changed is updated.
A collaborative process does not affect standards of professional responsibility and mandatory reporting requirements.
Communication that occurs in a collaborative process is confidential to the extent agreed to by the parties in a signed record.
Privileges and waivers
Generally, communication that is part of a collaborative process is not subject to discovery and is not admissible as evidence. A party or non-party participant may refuse to disclose a collaborative process communication. A party or non-party participant can also prevent another person from disclosing a communication. Information that is otherwise admissible or subject to discovery does not become privileged because it is used in a collaborative process.
Privilege does not apply to communication that is:
- Available to the public under the Freedom of Information Act,
- Made during an open session of a collaborative process,
- A threat to commit a violent crime,
- Intentionally used to plan, commit or attempt to commit a crime,
- Used to conceal ongoing criminal activity,
- Part of a claim of professional misconduct related to a collaborative process, or
- Part of a report of abuse, neglect or abandonment of a child or adult.
There is no privilege if a court finds that the evidence or communication is not otherwise available or the need for the evidence substantially outweighs the need for confidentiality. In this case, the collaborative process communication must be part of a proceeding that:
- Involves a felony or misdemeanor; or
- Seeks to rescind or reform a contract that arose out of a collaborative process.
Exceptions to privilege based on professional misconduct, allegations of abuse, felony or misdemeanor court cases, and contract disputes are limited to the part of the communication that applies to the issue. Disclosures or admission as evidence of excepted communication does not make the communication discoverable or admissible for any other purpose.
Privilege can be waived in a record or orally in a proceeding only if all parties expressly waive it. A person who discloses a communication that prejudices another person in a proceeding may not assert privilege.
Updated: March 2018