Mandatory Medical Malpractice Mediation Set to Begin in Illinois

An Illinois county court is set to begin applying a new court rule for mandatory mediation of medical malpractice cases that offers parties the choice of having a judge or private sector neutral serve as a mediator. In Madison County the new court rule provides that all pending and future cases will be referred to mediation within 90 days of the depositions of all plaintiffs and defendants. Once an order referring a case to mediation has been entered, the first mediation conference must be held within 90 days.

The Illinois Supreme Court approved the rule in September. The purpose of the mediation rule is to alleviate the burden to the parties of protracted litigation in medical malpractice actions, to further the administration of justice, and to prevent unnecessary delay. The provision allows the parties to a case referred to mediation the option of using a Circuit Court judge who is not the trial judge, or a compensated private sector neutral, as the mediator. If the parties fail to agree on who should serve, the rule authorizes the court to appoint the mediator. The court has a roster of private neutrals with the requisite training to serve as mediators in medical malpractice cases. In order to be certified to serve on the roster, an individual must complete a mediation-training program approved by the court and be a member in good standing of the Illinois Bar and a minimum of five years' practice. The roster currently includes only seven or eight individuals. In addition, two judges have completed mediation training and another five or six will be trained over the next year. The rule provides for the confidentiality of mediation communications. It exempts from discovery all oral or written communications in a mediation conference, other than executed settlement agreements, and makes them confidential and inadmissible as evidence in the underlying litigation unless all parties agree otherwise. There is a limited exception for a sanctions hearing based upon a motion or a report of a party's failure to act in good faith. Mediators are required to report to the court on whether the parties acted in good faith by attending, participating in the process, and having all the necessary people present to accomplish a settlement.