1. May 2015 Vol. 21, No. 5
In the Alternative
The newsletter of the Illinois State Bar Association’s Section on Alternative Dispute Resolution
Illinois State Bar Association
T
he Alternative Dispute Resolution (ADR)
Section presented its CLE program, Cre-
atively Resolving Disputes for Special Educa-
tionHearingsundertheIndividualswithDisabilities
Education, in Chicago on March 18, 2015 at the
ISBA Regional Office. The ADR Section expresses
its thanks to the ISBA co-sponsors of the pro-
gram: Education Law, Disability Law, Family Law,
Child Law, and Administrative Law. Additionally,
the ADR Section expresses its appreciation to the
ISBA CLE staff who provided invaluable technical
support.
The program included the following:
1. Overview of State and Federal Law - update
of the state and federal laws and regulations
Inside
Chair’s column . . . . . . . . . . . . 1
How to get the best
deal in mediation. . . . . . . . . . 1
Michigan enacts Uniform
Collaborative Law Act. . . . . . 3
The UK’s possible
adoption of eBay’s
online dispute resolution
method. . . . . . . . . . . . . . . . . . . 4
Case briefs. . . . . . . . . . . . . . . . 4
Happenings. . . . . . . . . . . . . . . 7
Upcoming CLE
programs. . . . . . . . . . . . . . . . . 7
Continued on page 2
Chair’s column
By Judge Ann Breen-Greco
If you're getting
this newsletter
by postal mail
and would
prefer electronic
delivery, just
send an e-mail to
Ann Boucher at
aboucher@isba.org
T
his short article summarizes a very useful
article in a recent edition of the Wall Street
Journal. Mediation has provided many with
a cheaper option to settle a dispute. Mediation
is used in a wide variety of cases, from divorces
to disputes between investors; Mediation has
becoming a very popular alternative to tradi-
tions legal methods. So, how can one maximize
their end of the deal when going through the
mediation process? Veronica Dagher writes in
her recent article Five Ways to Get a Better Deal in
Mediation about how individuals should “know
their priorities and look for tactical advantages at
the same time you are seeking common ground
(with the other party)” Outside of the above
stated advice, Dagher provides five ways to get a
better deal in mediation.
Dagher states that individuals should prepare
emotionally. Mediators are offering their services
to the parties involved so they can offer a deal
to both parties that both sides can deal with.The
outcome does not always make everyone happy
at the end of the day. Mediating a divorce could
yield its hurt feelings. Cheryl Lynn Hepfer, past
president of the American Academy of Matrimo-
nial Lawyers recommends couples to go and see
a marriage counselor or therapist before media-
tion begins. The benefits of going through this
process can offer a plethora of different results.
The parties involved in therapy/mediation can
find new ways to be constructive in their com-
munications as well as work on not antagonizing
or criticizing the other party.
Following the finance trail is important to re-
member as well. Keeping a tight grasp on your
financial information over the course of your
relationship with the company or individual can
provide a good bargaining tool. Also, during di-
vorce mediation, staying up to date with family
financescanhelpyouunderstandwhoisentitled
to what under the law. This useful information
can save time and provide an individual with a
better settlement towards the conclusion of the
mediation.
Choosingamediatorwhohasskillandexperi-
Continued on page 2
How to get the best deal in mediation
By Kyler Juckins, North Central College

2. 2
In the Alternative | May 2015, Vol. 21, No. 5
Chair’s column
Continued from page 1
governing a Free and Appropriate Educa-
tion as required by the Individuals with
Disabilities Education Act. Presenter:
Neal E.Takiff,WhittedTakiff & Hansen LLC,
Northbrook
2. Resolution, Mediation, and Settlement:
The School and Student Perspectives –
how to resolve special education disputes
from both the school district and student
perspectivesTopics include: dispute reso-
lution options (such as resolution session,
directsettlementnegotiation,andmedia-
tion), the pros and cons of each option,
and strategies for resolving disputes in
highly contentious matters. Presenters:
Charles P. Fox, Law Offices of Charles Paul
Fox, Buffalo Grove; Nancy F. Krent, Hodg-
es, Loizzi, Eisenhammer, Rodick & Kohn,
LLP, Arlington Heights
3. Alternative Procedures without Federal
and State Regulations - observations of
two Impartial Due Process Hearing Offi-
cers regarding which techniques and pro-
cesses have worked best to settle cases.
Presenters: Hon. Ann Breen-Greco, Ad-
ministrative Law Judge, Chicago; Mary
E. Schwartz, Illinois State Board of Educa-
tion, Chicago
4. Panel Discussion – an interactive panel
discussion using specific examples to ex-
plore the most successful uses of resolu-
tion mechanisms.
The program was well attended with par-
ticipants on site and by live webcast. ■
How to get the best deal in mediation
Continued from page 1
enceisveryimportant.Therearemanydiffer-
ent typesofcasesthatendupgoingtomedi-
ation so, it is vital to the parties best interests
that the mediator chosen has experience
dealing with your type of case. Also, be wary
of any potential biases the mediator might
have. Choosing the right mediator makes
sure you and the other party involved is not
immediately faced with a disadvantage, ac-
cording to John Lawrence Allen, a New York
lawyer who focuses on broker fraud.
During the mediation process, show
empathy. Mediation provides an opportu-
nity for parties to show their true feelings
because many of these feelings would not
be appropriate for a courtroom setting. The
parties involved in mediation are working on
making a deal and sometimes just apologiz-
ing or showing empathy towards a subject
could make that deal.While some people are
in mediation for monetary gain, others may
be there just to mend some broken feelings.
Finally, mediation may seem like a perfect
process, but it isn’t. Dagher states that all in-
dividuals going through mediation should
have a back-up plan. During this planning, it
maybeusefultohireanattorneywhohasex-
perience in other venues, like arbitration or a
courtroom. Parties may be so far from a deal
that the only other option is to settle in court.
While it may not be the best decision for the
parties involved, it could be the only option
left. Be ready for a plan B.
These tips are useful for all individuals.
Some day, any person could be faced with
a mediation, whether is be with their neigh-
bor or a divorce. Protecting your best inter-
est during mediation is very important and
these tips provide insight into protection
during the process.While five tips cannot en-
compass the entire mediation process, they
are a start. As mediation grows and adapts,
new tips and ideas will arise. Educating one-
self on current mediation methods and tips
will provide a solid foundation pre-media-
tion and, may lead you to success during a
future mediation.
Dagher, Veronica. “Five Ways to Get a
Better Deal in Mediation.” The Wall Street
Journal 7 Mar. 2015, Weekend Investor sec.:
B8. Print. ■
You’ve got
one shot.
Make it count.
the difference in
your business.
800-252-8908
217-747-1437
Call Nancy to find out how
an ad in an ISBA
newsletter can make

3. 3
May 2015, Vol. 21, No. 5 | In the Alternative
In the Alternative
Published at least four times per year.
Annual subscription rate for ISBA
members: $25.
To subscribe, visit www.isba.org
or call 217-525-1760
Office
Illinois Bar Center
424 S. Second Street
Springfield, IL 62701
Phones: 217-525-1760 OR 800-252-8908
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Editor
Thomas D. Cavenagh
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Naperville, IL 60540-4690
Managing Editor/
Production
Katie Underwood
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Alternative Dispute
Resolution Section
Council
Ann Breen-Greco, Chair
Harry L. Dubnick, Vice Chair
Hon. Allen S. Goldberg, Secretary
Hon. Charles R. Winkler, Ex-Officio
James F. McCluskey, Board Liaison
Melissa Burkholder, Staff Liaison
Robert E. Wells, Jr., CLE Coordinator
Mary C. Stark-Hood, CLE Committee Liaison
Disclaimer:This newsletter is for subscribers’
personal use only; redistribution is prohibited.
Copyright Illinois State Bar Association. Statements
or expressions of opinion appearing herein are
those of the authors and not necessarily those of the
Association or Editors, and likewise the publication
of any advertisement is not to be construed as an
endorsement of the product or service offered un-
less it is specifically stated in the ad that there is such
approval or endorsement.
Articles are prepared as an educational service
to members of ISBA.They should not be relied upon
as a substitute for individual legal research.
The articles in this newsletter are not intended
to be used and may not be relied on for penalty
avoidance.
Postmaster: Please send address changes to the
Illinois State Bar Association, 424 S. 2nd St., Spring-
field, IL 62701-1779.
Hon. David G. Bernthal
Joseph G. Bisceglia
Irving A. Chesler
Barbara B. Collins
Morton Denlow
Katheryn M. Dutenhaver
David J. Fish
Gail T. Friedman
Bianca T. Green
Hon. Russell W. Hartigan
Amanda G. Highlander
Hon. Michael S. Jordan
Hon. Steven L. Nordquist
Hon. Donald R. Parkinson
Hon. James M. Radcliffe III
John R. Schleppenbach
Kathleen H. Singletary
David C. Thies
Michelle A. Vescogni
Robert E. Wells, Jr.
Michigan enacts Uniform Collaborative Law Act
By Jonathon Kingzette, North Central College
C
ollaborative law is a voluntary proce-
dure by which parties seek to resolve
conflicts through negotiation in lieu
of having a resolution imposed on them by
a court or an arbitrator. However, rather than
two conflicting parties coming together di-
rectly to reach a resolution by mediating, the
collaborative law process entails collabora-
tive lawyers from each party engaging in a
negotiation process on behalf of their clients.
Collaborative lawyers do not represent their
clients in court, but operate for the express
purpose of negotiating agreements on their
client’s behalf with other collaborative law-
yers (Uniform Law Commission).
The Uniform Collaborative Law Act aims
to standardize the most important aspects
of collaborative law, including: ensuring that
collaborative law is a truly voluntary pro-
cess by disallowing courts to order anyone
to participate in collaborative law, making
all communications in the collaborative law
process completely confidential, and disal-
lowing information disclosed in the collab-
orative law process to be used in court. The
legislation was drafted and approved in 2009
by the Uniform Law Commission, which is a
non-partisan group that writes legislation for
states to“bring clarity and stability to critical
areas of state statutory law” (Uniform Law
Commission).
Michigan Governor Rick Snyder signed
the Uniform Collaborative Law Act into law
in June 2014 and it took effect starting in
December, making Michigan the tenth state
in the country to enact the legislation (Reso-
lution Systems Institute). Alabama, the Dis-
trict of Columbia, Hawaii, Maryland, Nevada,
Ohio, Texas, Utah, and Washington have al-
ready passed the legislation, and the Act was
also introduced last year in Florida, Illinois,
Massachusetts, New Jersey, Oklahoma, and
South Carolina (Uniform Law Commission).
The dispersion of the Uniform Collaborative
Law Act across a wide variety of states is a
testament to the growing popularity of col-
laborative law, and the necessity of states to
create uniform, streamlined guidelines by
which various forms of alternative dispute
resolution are regulated.
Uniform Law Commission. “Michigan
10th State to Enact Uniform Collaborative
Law Act.”uniformlaws.org 16 Jun. 2014. Web-
site. 26 Mar. 2015. ■
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4. 4
In the Alternative | May 2015, Vol. 21, No. 5
Garcia v. Department of Homeland
Security -No. 14-3048, United States
Court of Appeal for the Federal
Circuit, March 13, 2015
I
n 2013, former border patrol agent, Alber-
toGarciawasterminatedfromhisposition
by the Department of Homeland Security
for misconduct. Pursuant to 5 U.S.C. 7121(e)
(1), Garcia had the option to either appeal
his termination via the Merit Systems Protec-
tion Board or to invoke arbitration in accor-
dance with his union’s collective bargaining
agreement.Garciaoptedforthelater,andhis
union mailed his request for arbitration 28
days after the effective date of his termina-
tion. The Department of Homeland Security
received the letter demanding arbitration
seven days after it was mailed, resulting in a
total elapsed time of 35 days between Gar-
cia’s effective termination and his request to
arbitrate. However, pursuant to Article Thir-
ty-Four of the collective bargaining agree-
ment, any request to arbitrate must be filed
within 30 days of effective termination. After
an arbitrator was appointed to the case, the
Department of Homeland Security moved to
dismissed, citing Garcia’s failure to file within
the 30-day window allotted by the collective
bargaining agreement. The arbitrator found
that the plain meaning of “file” required ac-
tual receipt of the request for arbitration and
accordingly dismissed. The Federal Circuit
reversed, maintaining that the request for
arbitration need only be mailed with the 30-
day time period.
Serafin v. Balco Properties Ltd., LLC
–No. C11-00916, Court of Appeal of
the State of California, March 16th,
2015
Madeline Serafin sued her former em-
ployer Balco Properties Ltd., LLC alleging
claims arising from her employment, includ-
ing wrongful termination, harassment and
defamation. Citing a binding arbitration
agreement signed by Serafin when she was
hired by Balco, the trial court granted Balco’s
motion to stay the litigation pending the
completion of arbitration. The arbitrator ul-
timately found in favor of Balco on all issues
and the trial court granted Balco’s petition
to confirm the arbitration award. Serafin ap-
pealed on grounds that she never entered
into a binding agreement to arbitrate, and
therefore the trial court erred in concluding
that her claims against Balco were subject
to binding arbitration. Furthermore, Serafin
alleged that the arbitration agreement was
unenforceable because it was procedurally
and substantively unconscionable.The court
affirmed, disagreeing with Serafin’s claim
that she never entered into a binding agree-
ment and further found the degree of proce-
dural unconscionability minimal, concluding
that the arbitration award was enforceable.
Conners v. Gusano’s Chicago Style
Pizzeria –No. 14-1829, Eighth Cir-
cuit Court of Appeal for the United
States, March 9th, 2015
Conners, a former employee of Gusano’s
Pizzeria, filed a collective action against her
former employer claiming illegal tip pool-
ing under the Fair Labor Standards Act, 29
U.S.C. 216(b). A month after the action was
filed, Gusano’s Pizzeria implemented a new
arbitration policy that purported to bind
all current employees who did not opt out.
Along with the arbitration agreement, all
current employees received an opt-out form
and an explanatory memorandum, which
in plain English stated that one effect of the
arbitration agreement was to prevent em-
ployees from joining Conners in the present
collective action. Shortly after, Conners filed
an“emergency motion to prohibit improper
communications with putative class mem-
bers”, in part to invalidate the arbitration
agreement as it applied to the claims in the
litigation. The district court declared the ar-
bitration policy to be unenforceable insofar
as it could prevent current employees from
joiningthecollectiveaction.TheEightCircuit
vacated, noting that as a former employee of
Gusano’s, Conners lacked standing under
The UK’s possible adoption of eBay’s online dispute resolution method
By Katrina Gillilan, North Central College
Case briefs
By Brandon Sarkauskus and Kerby Kniss, North Central College
T
he Civil Justice Council in the United
Kingdom has recently announced a
proposition to introduce online courts
to their system in an effort to expedite the
resolution of low value civil disputes. This
council is known for being the body of gov-
ernment in the UK tasked with modernizing
the civil justice system and by introducing
thisprocesstheyaimtodojustthat.Thisidea
is said to have come from the current online
resolution used by eBay. Reports state that
English andWelsh courts should incorporate
online rulings, similar to eBay’s online dis-
pute resolution system, to hasten decisions
and lower costs.
Currently, eBay’s process encourages
parties to resolve the matter themselves by
use of online negotiation in the case of dis-
putes or complaints. If a dispute cannot be
resolved by negotiation, eBay then offers
a resolution service. Through this service,
both parties enter a discussion and present
their arguments. The outcome then lies with
a member of eBay’s staff who determines
a binding outcome under its Money Back
Guarantee.
The proposal made by the Civil Justice
System offers an implementation of a three
tier system comparable to eBay’s. In this sys-
tem, parties would have a limited period of
time to reach a settlement online. If the case
is not settled during this period, it will then
be overseen by a legally qualified facilita-
tor. The last step in the case of all previous
failing is for a judge to be drafted to make
a ruling based upon previously submitted
documents. Online conflict resolution me-
diums have picked up steam in the amount
it’s used and from the reports released by the
Civil Justice System, the UK may be next in
line for an adoption of this time and money-
saving tool. ■

5. 5
May 2015, Vol. 21, No. 5 | In the Alternative
Article III of the United States Constitution
since the arbitration agreement only applied
to current employees.
Fraternal Order of Police v.
Washington Metro Area Transit
Authority –No. 14-1332, Fourth
Circuit Court of Appeals for the
United States, March 10th, 2015
TheWashing Metro AreaTransit Authority
(WMATA) is an interstate agency that oper-
ates the Metrorail and Metrobus systems in
Washington D.C., Maryland and Virginia un-
der a compact agreed to by those jurisdic-
tions. As part of the compact, the WMATA is
authorized to employ a police force to main-
tain the laws of the compact jurisdiction on
the Metro system.TheWMATA employed the
Metro Transit Police Department (MTPD) to
serve as it police force, while the Fraternal
Order of Police (FOP) is the bargaining agent
on behalf of the MTPD. In response to the ter-
mination of two officers, the FOP filed griev-
ances and both cases reached arbitration,
wherein the Board of Arbitration overturned
both discharges. WMATA then reinstated
both officers, but as a result of their initial
terminations, the officers lost the certifica-
tions necessary to serve as a police officer
in Maryland. Additionally, both officers were
denied recertification after applying. Conse-
quently, WMATA terminated both officers for
a second time. The FOP filed action is federal
court on behalf of each officer, claiming that
WMATA failed to comply with the arbitration
awards. The district court granted summary
judgment for the FOP, citing that WMATA
failed to comply with the collective bargain-
ing agreement and the Compact.The Fourth
Circuit reversed, holding that WMATA’s deci-
sion to terminate the officers was not in vio-
lation of earlier arbitration awards and the
officers’claims belonged before the Board of
Arbitration, not federal court.
Raymond James Financial Services,
Inc. v. Fenyk –No. 14-1252, First Cir-
cuit Court of Appeals for the United
States, March 11th, 2015
Robert Fenyk brought an arbitration pro-
ceeding before the Financial Industry Regu-
latory Authority, alleging that he had been
terminated from his position with Raymond
James Financial Services on the grounds that
he was a recovering alcoholic, which was in
violation ofVermont’s Fair Employment Prac-
tices Act. The arbitration panel granted the
parties’ request to implement Florida law,
pursuant to an agreement between the par-
ties that stipulated any disagreement would
be settled by Florida law.The arbitration pan-
el found in favor of Fenyk and awarded him
$600,000 in back-pay. The district court va-
cated the award, concluding that the arbitra-
tors ultimately lacked authority to grant the
remedy because Fenyk brought no claims
under Florida law and that the arbitration
panel had ignored Florida’s one-year statute
of limitation for civil rights claims. The First
Circuit reversed, holding that the arbitra-
tors’decision to impose liability on Raymond
James Financial Services under Florida law
did not willfully flout the governing law or
exceed the bounds of the arbitrators’author-
ity to resolve disputes.
Jacqueline L. Connors v. Gusano’s
Chicago Style Pizzeria, doing
business as Kennedy’s Pizzeria Inc.
(8th Circuit Court of Appeals, March
2015, No.14-1829)
Jacqueline Connors and former em-
ployees filed a collective action against her
former employer Gusano’s Pizza restaurant.
Connors alleged herself and other former
employees were subjected to illegal tip poll-
ing in violation of the Fair Labor Standards
Act. One month after the action had been
filed Gusano’s Pizza implemented a new ar-
bitration policy as well as opt-out form. The
opt-out form was coupled with a memo-
randum which explained an employee who
wished to opt out could not join the pend-
ing collective action regarding Connors. Af-
ter the introduction of the new agreement,
Connors filed an emergency motion which
asked the district court to invalidate the ar-
bitration agreement, “prohibit the named
defendants from communicating with rep-
resented opt-in plaintiffs and putative class
members regarding the subject matter, and
authorize Plaintiffs to issue a Court-approved
corrective notice at the named defendants
expense” (4). Connors and the former em-
ployees also tried to obtain conditional class
certification. The district court denied both
motion but granted a temporary injunc-
tion, which prohibited Gusano Pizza from
enforcing the arbitration agreement to any
plaintiff who wanted to join the collective
action. On appeal, the Circuit Court of Ap-
peals first ruled they had jurisdiction over
the case for the district court’s order was an
injunction and could be appealed under 28
U.S.C. 1292(a)(1). However for the former
employers to show they needed injunctive
relief they had to prove they were under
threat of suffering‘injury in fact’was concrete
and particularized; the threat was actual and
imminent, not conjectural or hypothetical;
it was fairly traceable to the challenged ac-
tion of the defendant; and it was likely that
a favorable judicial decision will prevent or
redress the injury” (7). The court ruled the
former employers didn’t prove they were
under a real imminent threat since they no
longer worked at the restaurant. Therefore,
the former employers lacked standing to
challenge the current arbitration agreement.
As a result, the Court of Appeals reversed the
district court’s injunction order.
Norfolk Southern Railway Company
v. Thomas E. Perez, Secretary of
Labor (6th Circuit Court of Appeals,
February 2015, No. 14-3274)
In this dispute, Marcus Kruse was an em-
ployee of Norfolk Southern who was injured
on the job which forced him to take leave.
Upon his return, Kruse was given a thirty-day
suspension without pay for exceeding the
train speed limit. Kruse union appealed the
suspension under section 3 of the Railway
Labor Act, 45 U.S.C. 153.While waiting for his
pending appeal to be decided by the arbi-
tration board, Kruse filed a Federal Railroad
Safety Act complaint with the Department of
Labor where he alleged his suspension was
retaliation by the company for reporting his
injury. A hearing was held under an adminis-
trative law judge. Norfolk in the hearing mo-
tion for a summary decision by arguing the
FRSA’s election-of-remedies provision barred
Kruse from filing a complaint when his case
was already being arbitrated.The ALJ denied
the motion, and ruled in favor of Kruse. Next,
Norfolk appealed to Department of Labor’s
Administrative Review Board. The Board de-
nied their appeal and affirmed the admin-
istrative law judge’s decision. The company
then petitioned for review of the decision
to the 6th
Circuit Court of Appeals. Norfolk
argued that arbitration under the RLA is en-
compassed within 49 U.S.C 20109(f) which
states “[a]n employee may not seek protec-
tionunderboththissectionandanotherpro-
vision of law for the same allegedly unlawful
actoftherailroadcarrier”(2).TheCourtofAp-
peals agreed with the company’s argument,
however, they stated an employee “seeks
protection under a statute only if he seeks
to use it as a shelter-that is, only if the stat-
ute is the source of the substantive remedy
of the harm that the employee is attempting

6. 6
In the Alternative | May 2015, Vol. 21, No. 5
to revert”(9). Therefore, an employee can be
seeking protection if he already sought out
arbitration with a company that did not want
to participate. Kruse has the right to seek a
second option he does not have to choose
between option one or option two. As a re-
sult, the Board was correct in ruling that arbi-
trationdidnot“triggertheFRSA’selection-of-
remedies provision in 20109(f)”.
Universal Protection Service v. The
Superior Court of San Diego County
(4th Appellate District Court of Ap-
peals, February 2015, D066919)
The Petitioner in the case, Universal Pro-
tection Service, petitioned for a writ of man-
date after the lower court granted Franco’s, a
Universal employee, petition to compel arbi-
tration. Franco signed an arbitration agree-
ment that revealed that any labor disputes
between herself and the company would
be solved through arbitration. The agree-
ment also stated that the arbitration“is to be
conducted in accordance with the National
Rules for the Resolution of Employment Dis-
putes set forth by the [AAA]” (3). Therefore,
Franco argues AAA (American Arbitration
Association) rules“unambiguously state that
the arbitrator is to decide whether the par-
ties’ arbitration agreement permits class ar-
bitration, constitutes clear and unmistakable
evidence of their intent that the arbitrator
decide” (2). In contrast, Universal reveals the
agreement does not “clearly and unmistak-
ably submit arbitrability questions to the ar-
bitrator”(2).The Court of Appeals upheld the
lower court’s decision. They stated any refer-
ence to the AAA rules in the agreement em-
powersthearbitratorpowertorulewiththeir
own jurisdiction. The parties they revealed
agreed to the designated set of rules which
is clear and unmistakable evidence that the
arbitrator is given the authority to decide the
parties’disputes. As a result, Universal’s peti-
tion was denied and Floridalma Franco was
given recovery of her losses.
James G. Stanley Jr. et al. v. Michael
A. Liberty et al. (Maine Supreme
Judicial Court, March 2015, BCD-14-
194)
Michal A. Liberty and his five corporations
known as“the Liberty Corporate entities”ap-
pealed the decision made by the Business
and Consumer Docket which confirmed the
award granted through arbitration to James
G. Stanley. Liberty and Liberty corporate en-
tities argue the arbitrator in the matter ex-
ceeded his authority in granting the award.
The Supreme Court disagreed with Liberty
and Liberty corporate entities and upheld
the Business and Consumer Docket’s deci-
sion.The court stated they cannot review the
fact findings by the arbitrator because the
parties both chose not to record the hear-
ing. Secondly, the Supreme Court stated
they cannot overturn the arbitrations award
merely because Liberty believes sound legal
principles were not applied. The arbitrator
did not go outside the agreement to make
his decision or nor did he unfairly interpret
the contract. Lastly, the Court stated the ar-
bitrator did not piece the corporate veil by
making Liberty personally liable for his own
obligation to run his closely-controlled cor-
porations.
Montana Public Employees’
Association (MPEA) v. City of
Bozeman, Montana (Supreme Court
of the State of Montana, March
2015, 2015 MT 69)
The city in the matter dismissed Robert
Chase, a building inspector. Chase argued
his dismissal was unjust and filed his claim
with the MPEA. The MPEA then gave notice
to the city they wanted to arbitrate Chase’s
supposed grievances. However during this
process, MPEA did not request a list of po-
tential arbitrators from the Montana Board of
Personal Appeals in a timely manner. A year
after the request for arbitration, MPEA again
contacted the city to proceed with arbitra-
tion.The City refused the arbitration request.
Four years later, the Montana Public Employ-
ees’Association (MPEA) sought a declaratory
judgment to compel the city of Bozeman
to submit to arbititration. The 18th
Judicial
Distirct Court concluded that the dispute
between the two parties was not arbitrable
because the MPEA failed to follow the agree-
ment’s time limit. As a result of the court’s
decision a summary judgment was made in
the City’s favor. The Supreme Court reversed
the ruling and concluded the dispute was in
fact substantively arbitrable, therefore mak-
inganentryofsummaryjudgmentforMPEA.
The Supreme Court revealed that a dispute it
arbitrable despite a failure to follow the arbi-
tration agreements time lines, for the ques-
tion of procedural arbitrability is determined
by the arbitrator and not the court. Secondly,
the court stated the city’s waiver argument
not to compel arbitration is again an issue
that should be determine by an arbitrator.
The City of Des Plaines v.
Metropolitan Alliance of Police,WL
140957 (March 31, 2015)
Plaintiff, City of Des Plaines, sought to
terminate employee, Bueno, claiming the
use of excessive force against arrestees and
not reporting such incidents. Defendant
Metropolitan Alliance of Police, represented
Bueno and successfully moved to compel
arbitration. The arbitrator determined that
termination was not appropriate based on
due-process considerations because the City
had delayed the investigation. The City filed
a motion to vacate on public policy grounds,
statingthearbitratordidnotaddressthelike-
lihood of Bueno engaging in the same con-
duct. The Court reversed and remanded. The
Court found that there was a well-defined
and dominant public policy identified and
that the arbitrator’s award could possibly vio-
late public policy. The Court remanded the
case to the arbitrator in order to address the
public policy implications. ■
*Sorry, if you’re a licensed Illinois
lawyer you must be an ISBA member
to order.
Did you know?
Every article
published by the ISBA in
the last 15 years is available
on the ISBA’sWeb site!
Want to order a copy
of any article?* Just call or e-mail
Jean Fenski at 217-525-1760
or jfenski@isba.org

7. 7
May 2015, Vol. 21, No. 5 | In the Alternative
U.S. Supreme CourtWill Hear
DirecTV Arbitration Case
O
n Monday, March 23rd
, the United
States Supreme Court agreed to hear
a case concerning DirecTV and its
customers. DirecTV has tried to enforce arbi-
tration agreements that its customers in Cali-
fornia have signed, thus making customers
resolve disagreements with the company via
private arbitration. However, some custom-
ers believe that they have the right to bring
their disagreements with DirecTV to court
through the channel of class action lawsuits,
even if they have signed arbitration agree-
ments in their contracts. In 2013, DirecTV
won a case on this matter in the 9th
U.S. Cir-
cuit Court of Appeals, based in San Francisco.
However, in April 2014, consumers won a
case on this matter in the 2nd
District Califor-
nia Court of Appeals. Due to this discrepancy,
DirecTV filed an appeal of the 2014 decision
to the U.S. Supreme Court. The U.S. Supreme
Court will hear the case during its next term,
which begins this October. The name of the
case is DirecTV Inc. v. Imburgia, U.S. Supreme
Court, No. 14-462.
Mediators Succeed in Honeywell
Conversion Plant Labor Dispute
After a three-year contract with United
Steelworkers Local 7-669 expired last year,
Honeywell’sMetropolisWorksplantnearMe-
tropolis, Illinois locked out employees that
belonged to the steelworkers’union because
union negotiators had not signed a new con-
tractwithHoneywell.Theresultingstalemate
between Honeywell and its steelworkers’
union employees has lasted over six months;
union workers have not worked since August
2nd
, 2014. However, after a lengthy mediation
process, it seems as if a tentative deal has
been reached between Honeywell and the
union. The details regarding this agreement
have not been announced as was recom-
mended by the mediators, but the agreed
terms may be announced soon. Individuals
from the U.S. Federal Mediation and Concili-
ation Service functioned as mediators in this
conflict.
Conference on Corruption in
International Arbitration
This year, the Institute for Transnational
Arbitration and the American Society of In-
ternational Law (ITA-ASIL) will hold its annual
conference on April 8, 2015 in Washington,
D.C. The half-day conference will focus its
attention on corruption in international ar-
bitration from the perspective of arbitrators
and legal counsel. This conference precedes
a broader conference held by the American
Society of International Law annually, which
this year runs from April 8th
to April 11th
and
will be focusing on the theme of“Adapting to
a Rapidly ChangingWorld.”■
Happenings
By Jonathon Kingzette, North Central College
Upcoming CLE programs
To register, go to www.isba.org/cle or call the ISBA registrar at 800-252-8908 or 217-525-1760.
June
6/1/15 – 6/5/15 – Non CLE Co-spon-
sored event (DNP)—Settlement (Media-
tion)Week. Sponsored by the Illinois Chapter
of the Association of Attorney Mediators, co-
sponsored by the ISBA ADR Section.
Tuesday, 6/2/15-Teleseminar—Options
in Real Estate Transactions- Buying Time to
Decide & Wait and See. Presented by the
ISBA. 12-1.
Wednesday, 6/3/15, LiveWebcast—Hot
Topics in Insurance Coverage – 2015. Pre-
sented by the ISBA Insurance Law Section.
9:00 – 11:15.
Wednesday, 6/3/15 – Live Webcast—
Sexual Harassment Claims: Key Topics for
Initial Client Interview. Presented by the ISBA
Labor & Employment Section. 12:00 Noon –
1:30.
Wednesday, 6/3/15 – Live Webcast—
Cameras in the Courtroom. Presented by the
ISBA Standing Committee on Government
Lawyers. 3:00 – 5:00 pm.
Thursday, 6/4/15- Chicago, ISBA Chi-
cago Regional Office—Marty Latz Negotia-
tion Program. Master Series presented by the
ISBA. All Day.
Thursday, 6/4/15- LiveWebcast—Marty
Latz Negotiation Program. Master Series pre-
sented by the ISBA. All Day.
Friday, 6/5/15 – Chicago, ISBA Regional
Office—6th Annual Animal Law Conference.
Presented by the ISBA Standing Committee
on Animal Law. All Day.
Friday, 6/5/15 – Live Webcast—6th An-
nual Animal Law Conference. Presented by
the ISBA Standing Committee on Animal
Law. All Day.
Monday, 6/8/15- Teleseminar (live
replay)—Employees, Social Media, Smart-
phones, Tablets: Legal Issues for Employers.
Presented by the ISBA. 12-1.
Tuesday, 6/9/15- Teleseminar—2015
Ethics in Litigation Update, Part 1. Presented
by the ISBA. 12-1.
Wednesday, 6/10/15- Telesemi-
nar—2015 Ethics in Litigation Update, Part 2.
Presented by the ISBA. 12-1.
Wednesday, 6/10/15 - Live Webinar—
The Lawyer’s Pen as Mighty Client-Finder:
Writing for Business Development. Present-
ed by the ISBA Standing Committee on Law
Office Management and Economics. Noon –
1:00 pm.
Wednesday, 6/10/15- Live Webcast—
Service Animals: Rights Under the Fair Hous-
ingActandinEmployment.Presentedbythe
ISBA Standing Committee for Disability Law.
9-10 am. ■

8. In the Alternative
Illinois Bar Center
Springfield, Illinois 62701-1779
May 2015
Vol. 21 No. 5
Non-Profit Org.
U.S. POSTAGE
PAID
Springfield, Ill.
Permit No. 820
Illinois has a history of
some pretty good lawyers.
We’re out to keep it that way.
The book the judges read!
Order at www.isba.org/store/books/rulesofevidencecolorcoded
or by calling Janet at 800-252-8908 or by emailing Janet at jlyman@isba.org
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