Mandatory arbitration: first in Winnebago County, followed by DuPage and Lake

Kudos for the mandatory court arbitration experiment that began October 1, 1987, in Rockford are louder than criticisms. Operating under Supreme Court rules within the 17th Judicial Circuit Court in Winnebago County, the two-year pilot program has spurred two other counties to start similar programs: DuPage County in April and Lake County next month.

Supporters say the Winnebago County program already has saved time and money for taxpayers as well as for litigants and attorneys involved in these civil cases. Supporters predict that an elvaluation due early this month by Sangamon State University's Center for Legal Studies will prove the program a success.

A Judicial Conference Study Committee set out six years ago to find a way to resolve disputes without further tying up the court system. From its study and the recommendations of an Illinois Supreme Court committee on mandatory arbitration, the high court decided to follow the lead of Pennsylvania's programs and established rules for mandatory arbitration programs within the state court system (see Illinois Supreme Court New Rules, Nos. 86-95 and Illinois Revised Statutes, ch. 110, secs. 2-1001A-1105). Supreme Court Justice Howard C. Ryan of Ottawa, who is credited with getting the program started in Illinois,

' . . . you get up there, and you're the judge, and you forget about everything else'

explained that mandatory arbitration was set up within the court system "to avoid having no control over delays and no supervision." Ryan said the court's committee recommended that Illinois model its program after the 30-year-old Pennsyvania program. It was not impressed by California's use of one arbitrator, nor by Michigan's mediation "with a little arm-twisting that is almost arbitration."

The Illinois mandatory arbitration process is limited to civil cases where damages of $2,500 to $15,000 are sought. Instead of judges, the process uses a panel of three lawyers, including a chairman. State rules require one year of law practice experience for lawyer panel members but three years law practice experience for the chairman. In Winnebago County, however, the chairman must have at least five years of trial experience "to ensure credibility, the most important part of the program," according to Winnebago County Circuit Judge Harris H. Agnew. He is the county supervising judge for arbitration and was a member of both the judicial conference and the court committee on mandatory arbitration.

Procedures are strict to assure timely resolution. The arbitration panels cannot continue cases, and their awards require only a majority opinion. Agnew or another judge must issue court orders on the panels' decisions. All cases must go to hearing within six months in Winnebago County. "It used to take 26 months for a case to go through the system," said Agnew. "Now it's six months to clear up small cases." He said some bigger cases originally intended for the circuit court's regular process have been "bumped back to arbitration" once attorneys learned that settlement negotiations could make them eligible under the dollar guidelines for mandatory arbitration. DuPage County also follows the six-month time-line, but Lake County will use a shorter, four-month hearing schedule.

In Winnebago County, panels meet one week each month in courthouse jury and meeting rooms, as available. DuPage has rented space in the new county bar association building on a three-day-a-week schedule since April 3. Lake's first hearing is scheduled for November 8.

Typically in Winnebago County there is about a two-and-one-half hour hearing before a panel, often with documents instead of witnesses. Then parties to the lawsuit and their lawyers leave the hearing room, and the panel reaches its decision and recommends its award. Parties have 30 days to reject the award. If they wish to file for trial in circuit court, they must pay a $200 filing fee.

As of mid-September, Winnebago County's program had held 137 arbitration hearings since April 11, 1988, and DuPage had recorded 281 hearings since June 19, 1989. The Winnebago program shows 1,869 cases eligible for arbitration since it began, and DuPage approximately 2,000. Unlike Winnebago, which put only new cases on the mandatory arbitration schedule, DuPage reviewed its backlog and began with a hefty schedule.

"It's working," said Agnew. "A judge doesn't have to hear those cases, and the time can be spent someplace else, on the bigger cases." Agnew said, "Only 10 of every 100 cases go

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to arbitration hearing, and two are rejected," Agnew said. Of the 35 arbitration awards rejected so far in Winnebago County, four have gone on to trial in circuit court, 12 remained pending in September, and the other 19 settled out of court. "We're moving our big civil cases much faster," said Agnew, who credited the change in the regular circuit court to both the arbitration program and the court's new divorce division. A benefit for the circuit, he said, is additional time for pre-trial conferences to review cases before trial "and see whether there's any possibility of settlement."

DuPage cases disposed of by arbitration in August outnumbered all new cases filed by at least 100, according to DuPage County Associate Judge Robert E. Byrne, who serves as supervisor of arbitration in DuPage. He said, "The program also has led to new areas of cooperation between the bench and the bar [association]."

Putting attorneys, instead of judges, on the arbitration panels frees up courtrooms and judges, but there are some who question whether attorneys acting as judges deliver the same justice. "The quality of arbitration is the same, and the outcome is very close to what would come from a judge — virtually a mirror image," said James G. Woodward, an attorney and associate director of the Illinois Supreme Court's Administrative Office of the Illinois Courts. His office has created a training film for the attorney-arbitrators. The film, which stresses impartiality, decorum and dignity of the hearings, has been viewed by 350 Illinois lawyers. Agnew's bank of lawyer-arbitrators grew to 195 after a one-day training session September 7 in Rockford. Under the Winnebago schedule, each lawyer sits as an arbitration judge once or twice a year, receiving $100 for each half-day served, which is the rate set for all programs.

Opponents — as vocal but more difficult to find — of Winnebago County's program claim that it is riddled with cronyism between the lawyer panels and litigants' attorneys. One accuser blames the program for delays of up to six months in his clients' routine debt collection cases. Some critics say their respect for Judge Agnew prevents them from criticizing his pet project publicly.

Not every party has been satisfied with Winnebago County's arbitration. Roger and Barbara Willing of Pecatonica were willing to pay the filing fee in circuit court after their $50,000 lawsuit resulted in the arbitration panel's decision to award them $1,539.52 from Pecatonica Aerial Spray Service. One of the Willings' farmfields was accidentally sprayed with a chemical intended to kill corn in a neighbor's beanfield in 1984. "They [the attorney-arbitrators] don't know what farmers have to deal with," said Barbara Willing. "And the other lawyer was too friendly with the arbitration guys. We didn't like it one bit."

Their lawyer, William E. Schirger, said he was willing to try arbitration, but after two cases, "I'll do anything to avoid it in the future," he said. "The panelists lack experience, and the chairman does not have the independence of a judge. I think there is too much influence from friendships, working relationships with other attorneys."

Rockford attorney Paul R. Cicero said arbitration has added "four to eight months delay" to his clients' routine collection cases. "I feel the technical has triumphed over common sense," Cicero said. "A lot of people who aren't paying their bills aren't paying them on purpose, and now they know they can stall another six months or so."

It was Cicero's case, heard first in arbitration in April, that was the first panel award rejected in the program. "I'm proud of that," Cicero said. His client was sued for breach of contract, with a $3,064 panel award. At a subsequent bench trial, Agnew reduced the settlement to $838. Cicero said the final figure was "$30 less than we'd offered before they ever filed suit."

Long-time attorney Eugene Brassfield, on the other hand, said he thinks the new system "has possibilities of working." He said, "It settles citizen complaints. People appreciate being given a fair shot to have their side heard."

Attorney Frank P. Vella Jr., who has sat on both sides of the arbitration table, has high praise for the system. "Often a client won't listen to his attorney but will listen to three judges sitting up there," Vella said. "And many people just want their day in court."

Vella said that his fear of not being able to render fair decisions vanished when he got to the table. "For some reason, you get up there and you're the judge, and you forget about everything else," he said. He recalled hearing a case involving a lawyer who is not one of his favorites: "We ruled completely in his favor. I think this really is going to work out well."

Will the program spread throughout Illinois? Woodward said there are many counties that need to look at the program, but his office will not force anyone to do so. He said that the program cannot work without cooperation and acceptance from lawyers and their bar associations. But with that support and with adequate meeting places available, Woodward said a county could begin an arbitration program within about six months. That assumes funding is available from the state and that the Supreme Court approves the county program.

Justice Ryan's biggest disappointment in implementing arbitration in Illinois is the failure for the third consecutive year to get approval for a $2.5 million appropriation to set up a similar program in Cook County, the largest circuit with 72,045 civil cases filed in 1988. Funding totaling $809,150 was approved by the General Assembly and the governor for the other three counties. For the current fiscal year that began July 1, DuPage (ranked No. 2 in civil cases filed with 9,112) will receive $342,988, Lake (No. 3 with 5,848) will get $232,849 and Winnebago (No. 6 with 3,121) $167,191. (The remaining $66,122 is for statewide administrative cost.)

The higher costs for Cook County reflect the need to rent and furnish space, Ryan said. Revenue to help fund the arbitration programs also comes from a $5 arbitration fee for each civil suit filed in the counties with the program.

Ryan's larger goal for Illinois' court system is to get all cases to trial within two years. Arbitration appears to be a step in that direction. Acceptance of the system will depend on proof that it is fair. Woodward promised, "With the state study, we'll be able to tell you who wins and who loses."

Eileen Peterson is a free-lance writer living in Rockford.

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