Orlofsky ADR Services

Mediator’s Reports

Mediator's ReportsThere are an increasing number of reported cases in which the parties end up fighting about what occurred in a mediation. These disputes include whether a settlement was reached, what the terms of the settlement were, and whether one party acted in bad faith. It is logical in such situations to turn to the neutral mediator for a report on the relevant facts. In Illinois, however, the Uniform Mediation Act (710 ILCS 35/7) prohibits a mediator from providing a report on anything other than certain specified subjects, principally whether the mediation occurred or has terminated, whether a settlement was reached, and attendance. The mediator is not allowed to report on the content of the mediation. Although a report beyond these boundaries would likely be permitted if agreed to by all parties, in a contested situation, the mediator is severely restricted from providing a report on what took place.

An example of the impact of this on litigation is the recent case of Knowles v. Community Loans of America, Inc., 2012 WL 5868622 (S.D. Ala. 2012), where a trial court dismissed a claim because of a failure of the plaintiff to negotiate in good faith in a court-ordered mediation. The dismissal was based in part on a mediator’s report that described the plaintiff’s failure to provide requested information on several occasions. The appellate court found the dismissal an abuse of discretion for several reasons, one of which was that the court could not, under the Uniform Mediation Act, consider this kind of report from a mediator.

Note that this ruling is specifically based on the Uniform Mediation Act, which has been adopted in Illinois and about 10 other states. In addition, in an adopting state such as Illinois, there is an interesting question as to whether the Uniform Mediation Act applies in federal litigation. This would seem to turn on whether the statute was considered procedural or substantive under the Erie v. Tompkins doctrine.