Arbitration & Mediation

Revisiting Our Analysis of an Illinois Case Invovling An Anti-ADR Statute

By Christopher B. Hopkins, Esq.

The downside to hosting a blog is that your posts are sometimes rushed or misguided. We haven't found, in three years, instances where we outrightly wished we might retract a post -- although one may be out there! -- but we did come across an old post which was both a bit testy and a bit off-track. Since nothing ever disappears on the Internet, we might as well address it head on.

About a year ago, on July 4, 2008, we castigated an Illinois court for its decision in Estate of Joyce Gott v. SSC Odin Operating Company d/b/a Odin Healthcare Center. Our hearts clearly went out to the lawyer who we felt had been mistreated in the opinion which emphasized that points were waived or wrong. We even blasted the court for giving issues short treatment or none at all.

But our colleague at the Nursing Homes Abuse Blog may have a better perspective. First, he is an Illinois lawyer and, after all, this was an Illinois case. Second, he picked up on what practitioners there are likely concerned about -- a state court holding that an anti-ADR statute could be used to bar arbitration under the FAA. Since we saw that he re-examined the year-old opinion, we figured we might as well. The case even discussed, upon our re-review, the enforceability of statutes which bar arbitration and jury trial waivers since it does not single out arbitration alone.

Florida doesn't have an anti-arbitration statute but there have been attempts to pass such legislation. There may be a legislative shift in the future. If that comes about, we may need to re-visit how other states, like Illinois, have applied these statutes to FAA-invoking arbitration clauses. This case did not make it to the U.S. Supreme Court but there will likely be a anti-arbitration-state-statute-versus-the-FAA case in the near future.

Full post as published by Florida Arbitration Law on June 17, 2009 (boomark / email).