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U.S. Supreme Court Upholds Mandatory Arbitration Clause in Nursing Home Dispute

Nicole Wilmet, July 5th, 2017

In May, the U.S. Supreme Court upheld a binding arbitration clause when it heard the case of Kindred Nursing Centers Limited Partnership v. Clark. In Kindred, Beverly Wellner and Janis Clark, the wife and daughter of Joe Wellner and Olive Clark, each held power of attorney for their respective family members. When Joe and Olive moved into Kindred Nursing Centers L.P., Beverley and Janis completed all the necessary power of attorney paperwork on behalf of their family members. Included in this paperwork was a binding arbitration agreement whereby Beverly and Janis agreed, on their family member’s behalf, that any disputes arising out of their family member’s stay at the facility would be resolved through binding arbitration.

After Joe and Olive passed away, Beverley and Janis brought negligence suits against Kindred Nursing Centers L.P. alleging that Kindred’s substandard care caused their family member’s deaths. Kindred then moved to dismiss these cases and claimed that the binding arbitration agreements signed by Beverly and Janis prohibited these cases from being heard in court. Both the Kentucky trial court and appellate courts dismissed Kindred’s claims and found that Beverly and Janis could try their case in court. Following the appellate court’s decision, Kindred then appealed to the Kentucky Supreme Court who affirmed the lower courts’ decisions and once again found that the families’ claims could be tried in court. As the Kentucky Supreme Court explained, the Kentucky Constitution protects an individual’s right to a jury trial. 478 S.W. 3d 306, 328-329 (2015). As such, the court found that the nursing home’s power of attorney agreement could not permit an individual with power of attorney to waive a jury trial and enter into a binding arbitration agreement without specifically saying so. Id. at 329. Following the court’s decision, Kindred then appealed to the U.S. Supreme Court.

On May 15th, in a 7-1 decision, the Supreme Court determined that the lower courts in Kentucky violated the Federal Arbitration Act (“FAA”) when they failed to give effect to the nursing home’s binding arbitration clause. As the court explained, under the FAA, courts are required to give arbitration agreements the same weight as all other contracts. (pg. 7) By failing to uphold the Kentucky nursing home’s arbitration clause, the Court found that the Kentucky courts failed to give the arbitration clause the same weight as other contracts. (pg. 8) As a result, the Court held that the nursing home’s clause was valid and enforceable.

Lessons Learned from Foreclosure Mediation

Susan M. Yates, June 14th, 2016

It is heartening to see that titles of two recent publications include the phrase “lessons learned” as they explore Illinois’ experience with foreclosure mediation. That phrase reflects Resolution Systems Institute’s perspective that we should consistently seek the lessons from current mediation programs to apply to the next ones to be developed. Not surprisingly, RSI staff wrote one of these articles!

These pieces – the one by RSI and the other by the Woodstock Institute – outline four and twelve “lessons learned” respectively. The publications are:

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Family Law Arbitration Act

Susan M. Yates, March 24th, 2015

People who have been involved with family law are likely to have encountered mediation, especially in child-related issues. But what about arbitration?

The Uniform Law Commission is in the midst of drafting a Family Law Arbitration Act designed to provide a structure for arbitration of family law matters. The draft act provides many of the typical characteristics of arbitration that distinguish it from litigation. For example, parties will enter arbitration through an agreement to arbitrate; parties select and hire their arbitrator; arbitration proceedings and awards can be confidential; and arbitration awards are final, with very limited causes for appeal to a court. Family law arbitration differs from commercial arbitration in some key respects, such as greater opportunities for judicial review of awards determining child custody and support.

Family arbitration is quite dissimilar from family mediation. Most importantly, the arbitrator makes a decision that (more…)

Chicago-Area Settlement Week

Mary Novak, March 16th, 2015

The Illinois Chapter of the Association of Attorney-Mediators (AAM) is sponsoring a Settlement Week from June 1-5, 2015. Illinois mediators will mediate civil cases throughout the Chicagoland area at no cost to the parties.

Attorneys who have cases they would like to bring to Settlement Week can jointly select from a list of participating mediators.  Mediators will include members of the Illinois Chapter of the Association of Attorney-Mediators and other mediators certified by the Circuit Court of Cook County or another Illinois Circuit Court.

The mediations will take place during the five-day Settlement Week and are expected to take a full or half day. The focus of the program is on cases in the civil calendars in the Courts of Cook, DuPage, Lake, McHenry, and Will Counties.

For additional information, visit http://www.attorney-mediators.org/Settlement-Week.

Navigating Your Way Through Conflict — Q&A with Susan Yates

Just Court ADR, February 27th, 2015

Recently our Executive Director Susan Yates participated in this Q&A by Liz Markel on the topic of navigating through conflict at the Nonprofit Chicago blog. The blog is hosted by the Axelson Center for Nonprofit Management at North Park University. Susan will present a workshop on this subject at North Park University on March 25. Reprinted from Nonprofit Chicago:

Is there anything positive about conflict?

Yes! If we all just got along all the time, we wouldn’t improve our decisions or learn how to understand one another better. Just as we know that diversity of backgrounds and experiences enrich our nonprofits, so does some healthy disagreement. The question is how you and your organization manage that conflict. (more…)