Uniform Arbitrator Reference Manual - Circuit Court of Cook County

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Supreme Court of Illinois ADMINISTRATIVE OFFICE OF THE ILLINOIS COURTS September 2010 To Whom It May Concern: I am pleased to present the Uniform Arbitrator…
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Supreme Court of Illinois ADMINISTRATIVE OFFICE OF THE ILLINOIS COURTS September 2010 To Whom It May Concern: I am pleased to present the Uniform Arbitrator Reference Manual for the Court-annexed mandatory arbitration programs. The Administrative Office gratefully acknowledges the Alternative Dispute Resolution Coordinating Committee of the Illinois Judicial Conference for drafting and developing the Manual. I also wish to express my gratitude to all who contributed to the Manual’s preparation. This document is a symbol of the Illinois judiciary’s commitment to providing the highest level of quality support for its programs, a goal which the Administrative Office is both privileged and pleased to facilitate. This statewide, uniform Manual is a compilation of rules and statutes, applicable case law, questions and answers, checklists, scenarios and explanations, which pertain to the proper practices for a case proceeding through Illinois’ mandatory arbitration system. The various sections of this uniform Manual contain information relative to administrative regulations, arbitrator qualifications, case types eligible for mandatory arbitration, and actual steps for an arbitration proceeding, including the entry of an award at the conclusion of the hearing. Additionally, included are sections setting forth the Illinois Supreme Court rules and statutes applicable to these proceedings, as well as examples of local rules, which will differ slightly in each circuit, and how these local rules should be applied in a manner that is consistent with the overall goal of the program. Selected case law setting forth various arbitration proceeding scenarios, and ultimate rulings on how these scenarios should be handled based on these precedents, is covered in a comprehensive outline format. Finally, information on compliance with Supreme Court rules and factors to be considered in determining good faith participation, the cornerstone of arbitration proceedings, is present throughout the Manual. Cynthia Y. Cobbs, Esq. Director 222 North LaSalle Street, 13 th Floor Chicago, IL 60601 Phone (312) 793-3250 Fax (312) 793-1335 3101 O ld Jacksonville Road Springfield, IL 62704 Phone (217) 558-4490 Fax (217) 785-3905 September 2010 Page -2- This uniform Manual was created for the purpose of responding to a prevailing need to achieve statewide consistency in arbitration proceedings, and uniformity among the various counties/circuits in which mandatory arbitration is successfully utilized to resolve appropriate cases in an informal, but serious, alternative process. The ultimate goal is to offer arbitrators a compilation of information to ensure a common understanding of the purpose of the program, and implement responsibilities and decisions in a manner consistent with achieving uniformity through ongoing developments in legislation and case law. For further information on the Manual, I invite you to write to the liaison of the Alternative Dispute Resolution Coordinating Committee, Mr. Anthony F. Trapani, at ttrapani@court.state.il.us or fax, [217] 785-3793. Sincerely, Cynthia Y. Cobbs, Director Administrative Office of the Illinois Courts Enclosures c: Honorable Patricia Banks, Chairperson, ADR Coordinating Committee (w/o enclosures) Arbitration Supervising Judges (w/o enclosures) Ms. Dawn Marie Rubio, Assistant Director, Court Services Division (w/o enclosures) Mr. Anthony F. Trapani, AOIC Liaison, Court Services Division (w/o enclosures) Court-Annexed Mandatory Arbitration Program UNIFORM ARBITRATOR REFERENCE MANUAL An Arbitrator's Uniform Guide to Court-Annexed Mandatory Arbitration Procedures prepared and compiled by the: Alternative Dispute Resolution Coordinating Committee of the Illinois Judicial Conference Chairman Honorable John O. Steele Members Honorable Patricia Banks Honorable John Coady Honorable Claudia Conlon Honorable Robert E. Gordon Honorable David E. Haracz Honorable Michael D. Kramer Honorable Stephen R. Pacey Honorable Lance R. Peterson Associate Members Honorable Donald J. Fabian Advisors Honorable Harris H. Agnew (Ret.) Honorable John G. Laurie (Ret.) Mr. Kent Lawrence The Committee wishes to acknowledge the assistance of: Colleen M. Glass, Esq. - Staff Attorney, Office of the Chief Judge, Circuit Court of Cook County and Anthony F. Trapani, Committee Liaison, Administrative Office of the Illinois Courts, Court Services Division Acknowledgments Illinois Supreme Court Honorable Robert R. Thomas, Chief Justice Honorable Charles E. Freeman Honorable Thomas L. Kilbride Honorable Lloyd A. Karmeier Honorable Thomas R. Fitzgerald Honorable Rita B. Garman Honorable Anne M. Burke Cynthia Y. Cobbs, Director Administrative Office of the Illinois Courts and For participation in the Mandatory Arbitration Program and/or contribution of materials for use in this Manual: Circuit Court of Cook County Honorable Timothy C. Evans, Chief Judge Honorable E. Kenneth Wright, Presiding Judge, 1 st Municipal District Kimberly A. Atz O'Brien, Arbitration Administrator Emelda E. Wilkins, Deputy Arbitration Administrator Honorable Michael Healy, Supervising Arbitration Judge (Ret.) Honorable Moira Johnson, Supervising Arbitration Judge Honorable John G. Laurie, Arbitrator Training/Materials (Ret.) Colleen M. Glass, Staff Attorney, Office of the Chief Judge Third Judicial Circuit Honorable Ann Callis, Chief Judge Honorable Ralph Mendelsohn, Supervising Judge Kathleen C. Harris, Arbitration Administrator Eleventh Judicial Circuit Honorable Elizabeth A. Robb, Chief Judge Honorable Stephen R. Pacey, Supervising Judge, Ford County Honorable Rebecca Foley, Supervising Judge, McLean County Deborah F. Haas, Arbitration Administrator Twelfth Judicial Circuit Honorable Stephen D. White, Chief Judge Honorable James Garrison, Supervising Judge Kurt Sangmeister, Court Administrator Nanette LaGrange, Assistant Arbitration Administrator Acknowledgments (cont.) Fourteenth Judicial Circuit Honorable Jeffrey W. O'Connor, Chief Judge Honorable Mark VandeWiele, Supervising Arbitration Judge Victoria Bluedorn, Court Administrator Jill Zimmer, Arbitration Administrator Sixteenth Judicial Circuit Honorable Donald C. Hudson, Chief Judge Honorable Richard J. Larson, Supervising Arbitration Judge Douglas Naughton, Chief Court Administrator Margie Weiten, Assistant Arbitration Administrator Seventeenth Judicial Circuit Honorable Janet R. Holmgren, Chief Judge Honorable Timothy R. Gill, Supervising Arbitration Judge Todd A. Schroeder, Trial Court Administrator Christine J. Hawley, Assistant Arbitration Administrator Kathryn Anderson, ADR Secretary Eighteenth Judicial Circuit Honorable Ann B. Jorgensen, Chief Judge Honorable Hollis L. Webster, Presiding Judge, Law Division Honorable Kenneth A. Abraham, Supervising Arbitration Judge Loretta K. Glenny, Arbitration Administrator Carol A. Robles, Assistant Arbitration Administrator ADR Committee of DuPage County Bar Association John B. Kincaid, Esq. James F. McCluskey, Esq. Alfred A. Spitzzeri, Esq. Nineteenth Judicial Circuit Honorable Christopher C. Starck, Chief Judge Honorable David M. Hall, Presiding Judge, Civil Division Honorable Valerie Boettle Ceckowski, Supervising Arbitration Judge Delta J. Hawkins, Arbitration Administrator Lorena E. Hernandez, Assistant Arbitration Administrator Jodi A. Brown, Caseflow Assistant Twentieth Judicial Circuit Honorable C. John Baricevic, Chief Judge Honorable Annette A. Eckert, Supervising Arbitration Judge Honorable Vincent Lopinot, Supervising Arbitration Judge Kathleen Tissier, Arbitration Administrator Mary Miller, Assistant Arbitration Administrator Acknowledgments (cont.) Twenty-Second Judicial Circuit Honorable Michael J. Sullivan, Chief Judge Honorable John D. Bolger, Supervising Arbitration Judge Delta J. Hawkins, Arbitration Administrator Lorena E. Hernandez, Assistant Arbitration Administrator Also acknowledged for preparation of various counties' individual manuals and Arbitrator's Guide to Established Rules of Evidence: Honorable Loretta Carol Douglas (Ret.) Gary H. Schwartz John Joseph Lapinski Table of Contents Section 1: Introduction ..............................................................................................................1 Section 2: Administrative Regulations and Arbitrator Service .................................................5 Common Questions and Answers ............................................................................5 Section 3: Cases Eligible for Mandatory Arbitration ..............................................................15 Section 4: Arbitration Proceedings .........................................................................................17 Section 5: The Arbitration Award ...........................................................................................20 Section 6: Applicable Illinois Statutes ....................................................................................25 - 735 ILCS 5/2-1001A through 1009A Mandatory Arbitration System ............27 - 735 ILCS 5/2-1116 Limitation on Recovery in Tort Actions; Fault ...............29 - 735 ILCS 5/2-1117 Joint Liability ...................................................................31 Section 7: Applicable Illinois Supreme Court Rules ..............................................................32 - SCR 86 through 95 Mandatory Arbitration Rules ...........................................34 - SCR 216 and SCR 237 Hearing and Evidence Rules ......................................43 - SCR 61 through 66 Illinois Code of Judicial Conduct ....................................45 Section 8: Local Rules and Procedures ...................................................................................54 Section 9: Selected Case Law Outline ....................................................................................57 Section 10: Checklists ...............................................................................................................92 1. Mandatory Arbitration Proceedings Checklist..................................................93 2. Arbitrator Recusal Checklist .............................................................................98 3. Good Faith/Bad Faith Participation ..................................................................99 Section 11: Jury Instructions ...................................................................................................105 Section 12: Evidence Scenarios ..............................................................................................112 Uniform Arbitrator Reference Manual 1 Section 1 Introduction to Mandatory Arbitration In Illinois Uniform Arbitrator Reference Manual 2 Section 1 INTRODUCTION Court-Annexed Mandatory Arbitration in Illinois is derived both from an act passed by the General Assembly (Public Act 84-844; 735 ILCS 5/2-1001A et seq.) and from rules adopted by the Illinois Supreme Court (Illinois Supreme Court Rules 86-95). While the process of arbitration itself is not new or unique in the private sector, the court-annexed model is notably different in that it is mandatory for certain classes of cases, but the outcome is non-binding. When utilized in the private sector, arbitration tends to be entered voluntarily by the disputing parties, usually with an agreement that the decision will be binding and conclusive. In Illinois and elsewhere, policy makers have determined that courts should require arbitration for some types of civil disputes because it can contribute to a reduction of court congestion, costs, and delay as well as help diminish the financial and emotional costs of litigation for parties. The goal of the process, therefore, is to deliver a high quality, low cost, expeditious hearing in eligible cases, resulting in an award that will enable, but not mandate, parties to resolve their dispute without requiring a formal trial. The conduct of judges, arbitrators, parties and their counsel has been instrumental in promoting this goal. Cases eligible for the arbitration process are defined by Illinois Supreme Court Rule 86 as civil actions in which each claim is exclusively for money damages not exceeding the monetary limit authorized by the Supreme Court of Illinois. Each county/circuit has been granted the authority to focus its arbitration program on particular types of cases within this general classification. (Please consult the local rules of the county/circuit for this information.) Many of the pre-hearing procedures that pertain to this class of lawsuits generally still apply. Illinois Supreme Court Rule 86(e) states that the Code of Civil Procedure applies to arbitration cases unless otherwise stated in the arbitration rules. For example, pre-hearing motions are raised and decided in much the same way that they are raised and decided in non- arbitration cases. However, discovery is limited in arbitration cases, and Rule 89 states that all discovery must be completed prior to the arbitration hearing. Rule 89 also allows circuits to shorten the time lines for discovery discussed in Illinois Supreme Court Rule 222. The time span between the date of filing to hearing before an arbitration panel is intended to be tightly controlled by the court, and Supreme Court Rule 88 provides that all arbitration cases shall have a hearing within one year of the date of filing. Faster dispositions are possible in this system because the parties are assured when the lawsuit commences that a hearing date will be set quickly and will be adhered to except in unusual circumstances. As a result, attorneys familiar with the program approach their arbitration cases with an expectation that the process will be expedited and that a disposition will occur in a relatively short period of time. Uniform Arbitrator Reference Manual 3 Section 1 The essence of the process is, of course, the arbitration hearing. This hearing is conducted in a fair and dignified, yet less formal fashion, by a panel of three specially trained attorneys and retired judges. The attorney-arbitrators are empowered not as judges, but as adjuncts of the court with authority to administer oaths, rule on the admissibility of evidence, and decide questions of fact and law in reaching an award in the case. While the rules of evidence apply in arbitration hearings, Illinois Supreme Court Rule 90(c) makes certain types of documents presumptively admissible. By taking advantage of the streamlined mechanism available for using documentary evidence in an arbitration hearing, presentations of evidence typically can be abbreviated to meet the objective of completing hearings in about two hours. The arbitrators conduct their deliberations in private but must announce their award on the same day the hearing occurred. An award requires the concurrence of at least two arbitrators. An award can be a finding in favor of either party in an arbitration case. The Supreme Court rules extend the right of rejection to all parties. However, four conditions attach to the exercise of this right to reject the award. First, the party who desires to reject the award must have been present at the arbitration hearing in order to preserve that right. Second, that party must have participated in the arbitration process in good faith and in a meaningful manner. Third, the party wanting to reject the award must file a rejection notice with the court within thirty days of the date the award was filed. And fourth, except for indigent parties, the party who initiates the rejection must pay a fee of $200 (fee may vary, check local rules) to the clerk of the court. It is intended that this fee will be a disincentive that will discourage frivolous rejections. At the same time, no party who is sincerely dissatisfied with the outcome in arbitration will be denied his/her right to have the case decided at trial. If no rejection is filed within the time allowed, the arbitration award may be entered as a judgment of the circuit court on the motion of any party. (See Supreme Court Rule 93 and 95) The objective of the program and the program rules is to submit certain claims to arbitration that would tend to be amenable to closer management and faster resolution in an informal alternative process. There are safeguards designed to insure the fairness of the process. These safeguards include the right to petition the court for an order transferring the case out of arbitration before the arbitration hearing takes place and the right to reject an award believed to be unacceptable. This being said, however, the Illinois Supreme Court Committee Comments regarding Supreme Court Rule 91 state, in part, that a consistent theme throughout the rules governing Mandatory Arbitration is the need for the parties and their counsel to take the proceedings seriously; specifically the concern that no party make “a mockery of this deliberate attempt on behalf of the public, the bar and the judiciary to attempt to achieve an expeditious and less costly resolution to private controversies.” The intention is to avoid allowing the arbitration process to be reduced to merely “another hurdle to be crossed in getting the case to trial.” It is this theme that is prevalent in the various sections of this statewide, uniform manual. It has already been established that parties involved in appropriate lawsuits, and their counsel, have come to appreciate the benefits of the arbitration program and the early uncertainty has significantly diminished. The expanded goal, then, is to move forward with developments through legislation and case law to achieve the ultimate result consistently. This manual provides arbitrators with resources for understanding the program, analyzing the case before them, applying the appropriate law and drafting the most thorough and effective award possible. Uniform Arbitrator Reference Manual 4 Section 1 This manual is a compilation of contributions from the many advocates of the Mandatory Arbitration System whose hard work and dedication have made the program a success. The objective of providing this uniform manual is to ensure that arbitrators statewide share the same understanding of the purpose of the arbitration program and implement their responsibilities and decisions in a manner consistent with this goal. Uniform Arbitrator Reference Manual 5 Section 2 Administrative Regulations and Arbitrator Service Common Questions and Answers Uniform Arbitrator Reference Manual 6 Section 2 Administrative Regulations and Arbitrator Service Common Questions and Answers The following section contains information relative to the administrative aspects of the Mandatory Arbitration Program. “Administrative Regulations and Arbitrator Service” addresses the requirements and details for being an arbitrator. This includes information regarding training, compensation, scheduling, and attorney status. “Common Questions and Answers” addresses questions that might arise from parties, practicing attorneys and the arbitrators themselves. This includes information regarding the arbitration facilities, cases, motions, hearings and awards among other frequently asked questions.
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