Rule . Mandatory Arbitration: Introductory Comments

MANDATORY ARBITRATION

Introductory Comments

Objectives

The Committee, from its inception, was duly aware of the formidability of its undertaking in

the light of the novelty to the Illinois bar of the concept as well as the procedure for the conduct

of nonbinding court-annexed arbitration as a method for dispute resolution. It finds, even at this

date, approximately one year after the effective date of the enabling legislation, after the

publication of numerous articles, the consideration of proposed rules by three major bar

associations and public hearings, that the vast majority of the Illinois bar is unaware of the

existence of this act and the imminence of this procedure as an integral part of the State judicial

system.

The clarity, the reasonableness and the fairness of the rules to be recommended were a foremost

consideration by the Committee to address both the fact of the foregoing novelty as well as the

apprehension usually attendant to the introduction of a new procedure to be learned and put into

practice. Equally if not more so, was the Committee dedicated to achieving a product worthy of

acceptance and promulgation by this court.

At the time of our appointment, there were in effect in approximately 16 jurisdictions rules for

the conduct of mandatory arbitration programs, any set of which conceivably could have served

as a viable model for adoption and use in Illinois. However, the focus of our effort in relation to a

set of specific rules was to recommend that which would induce support from all affected sectors

of the bar and the public, and which would manifest itself as a feasible vehicle for an early

economical and fair resolution of monetary disputes.

Toward these ends, it was our intention in the conduct and course of deliberations to obtain a

product refined from the use and experience of the full panoply of models in existence and that of

Pennsylvania in particular

upport from all affected sectors

of the bar and the public, and which would manifest itself as a feasible vehicle for an early

economical and fair resolution of monetary disputes.

Toward these ends, it was our intention in the conduct and course of deliberations to obtain a

product refined from the use and experience of the full panoply of models in existence and that of

Pennsylvania in particular.

Background and Sources

When the Committee began its deliberations, there were among its members four judges who

had previously served on a Judicial Conference Study Committee, whose recommendations served

as the basis for the present mandatory Arbitration Act. These four judges, as a result of the prior

study had available to them for use in the work of this Committee a considerable bank of

knowledge of existing arbitration systems. A national conference on mandatory arbitration

sponsored by the National Institute for Dispute Resolution held in Washington, D.C., May 29-31,

1985, provided the chair of this Committee with a further opportunity to discuss the development

of these programs with representatives of other jurisdictions.

To enable those members of this Committee who had not served on the Study Committee to

become equally informed, a visit was arranged for them to attend and observe the operation of the

mandatory arbitration program at Philadelphia, Pennsylvania, and to meet with judicial and

administrative personnel so engaged. For two days-December 9 and 10, 1985-several members of

the Committee, State Senator Arthur Berman and four members of the Chicago bar, knowledgeable

in the field of voluntary arbitration, attended actual hearings being conducted at the Arbitration

Center and meetings with supervisory judges and administrators. On December 10 a round-table

discussion was arranged for our contingent with 14 practitioners of Philadelphia, representing

plaintiff and defense bars, insurance carriers and the metropolitan transit system. Without

go bar, knowledgeable

in the field of voluntary arbitration, attended actual hearings being conducted at the Arbitration

Center and meetings with supervisory judges and administrators. On December 10 a round-table

discussion was arranged for our contingent with 14 practitioners of Philadelphia, representing

plaintiff and defense bars, insurance carriers and the metropolitan transit system. Without

exception those members of the Committee who had not previously been knowledgeable of this

process, as well as the other attendees from Illinois, were imbued with enthusiasm for the prospect

of a similar program available to Illinois and immensely impressed with the apparent effectiveness

as well as the wide-scale acceptance of this procedure in Philadelphia.

In addition to the Philadelphia on-site study by members of this Committee, its chair and

member Judge Harris Agnew, accompanied by staff attorney James Woodward, on a later occasion

visited four other less populous counties of Pennsylvania to study the use and operation of their

mandatory arbitration programs. These visits provided models of local rules and the opportunity

to interview judges and practitioners involved as well as to learn their evaluations of the

effectiveness of rules in place.

The Committee’s chair met with the supervising judge, the administrator and attorney

practitioners in the arbitration program at Passaic County, New Jersey, and then repeated this

scenario at Pittsburgh. On a later occasion the chair visited with the administrator of the King

County (Seattle), Washington, arbitration program and one of its leading practitioners to discuss

the effectiveness of their local and statewide rules.

It was uniformly reported to this Committee, from those thoroughly experienced with this

procedure, that a full hearing necessary to arrive at award could be achieved in less than three

hours. Reports from several jurisdictions were that a full hearing usually required even less than

two hours to completion

its leading practitioners to discuss

the effectiveness of their local and statewide rules.

It was uniformly reported to this Committee, from those thoroughly experienced with this

procedure, that a full hearing necessary to arrive at award could be achieved in less than three

hours. Reports from several jurisdictions were that a full hearing usually required even less than

two hours to completion. It was feasible to expect completion of a three-day, 12-person jury trial

within that time via the arbitration procedure under similar rules.

The fairness of the rules governing these hearings is evidenced by the high rate of acceptance

by litigants, the steady increase in the number of jurisdictions initiating these programs, and their

proliferation among judicial districts within a jurisdiction once it has been initiated. The reliability

and durability of existing programs are further evidenced by the relatively few amendments to the

rules that have been adopted since their inception. When there has been amendment, it usually

consisted of an increase in the monetary limit for arbitrability, which in itself attests to the

acknowledgment of the effectiveness of their rules and this mechanism for dispute resolution.

By late summer of 1986, the Committee had reached a consensus for proposed rules for

consideration by the general bar and interested members of the private and public sectors. A draft

of these proposed rules was widely distributed and responses invited. The Illinois State Bar

Association, the Chicago Bar Association and the Chicago Council of Lawyers were specially

requested to invite appropriate committees of those associations to consider these rules and

formulate responses. The Committee arranged and conducted two hearings, one in Chicago and

the other in Springfield. At those hearings, representatives of these bar groups, of the judiciary,

and of major insurance carrier trade associations representing the membership of several hundred

companies appeared to present their views relative to the draft

f those associations to consider these rules and

formulate responses. The Committee arranged and conducted two hearings, one in Chicago and

the other in Springfield. At those hearings, representatives of these bar groups, of the judiciary,

and of major insurance carrier trade associations representing the membership of several hundred

companies appeared to present their views relative to the draft.

Review of this draft by respected authorities among the judiciary in Philadelphia who served

in supervisory positions relative to their arbitrary programs was supportive and complimentary.

Altogether, the review of the proposed draft and the responses received were highly supportive

for its acceptance in that form. Nevertheless, the Committee saw fit to consider incorporating, in

the rules, recommendations that appeared to have merit and to seek to clarify those provisions that

seemed to elicit misunderstanding or confusion.

The last major inquiry by the Committee consisted of a meeting on December 12 sponsored

by the National Institute for Dispute Resolution, with eight distinguished attorneys selected by the

Committee, from out of State, and well informed in the conduct of mandatory arbitration

proceedings in their jurisdictions. The inquiry at the meeting centered on the conduct of the hearing

itself in an effort to refine the rules to the extent and in such form as would provide the broadest

acceptance by all affected thereby.

Not the least of the Committee’s efforts were the many meetings attended and the hundreds of

hours of discussion and deliberation devoted to this undertaking.

As knowledgeable on this subject, if not more so, than any member of the Committee, Supreme

Court Justice Howard C. Ryan, Liaison to the Committee, shared his knowledge and wisdom with

us throughout the course of our deliberations

d thereby.

Not the least of the Committee’s efforts were the many meetings attended and the hundreds of

hours of discussion and deliberation devoted to this undertaking.

As knowledgeable on this subject, if not more so, than any member of the Committee, Supreme

Court Justice Howard C. Ryan, Liaison to the Committee, shared his knowledge and wisdom with

us throughout the course of our deliberations. Constantly etched in our minds were his astute

recommendations that we pay particular heed to the effectiveness of the Pennsylvania rules in the

use of general guideline principles, leaving to the circuits the development of more detailed

guidelines for local needs.

In aid of the objectives stated and from the foregoing sources, the following recommendations

evolved.