The Jury Is Out. Literally!

The Jury Is Out. Literally. What Does This Mean For Your Contract?

Due to the pandemic, many jurisdictions including Illinois are postponing jury trials until sometime in 2021. But not all contract disputes allow for jury trials or bench trials. Many physician employment agreements require that binding arbitration be the sole method of dispute resolution. What does this mean for you?

An agreement to arbitrate is a contractual agreement between two-private parties, and courts have made clear an intent to uphold arm’s length negotiated contracts and to hold parties to their agreement. Parties should carefully weigh the potential upsides and downsides of agreeing to arbitrate disputes instead of going to civil court.


Arbitration is a form of alternative dispute resolution whereby parties to a dispute agree to submit their respective positions and evidence to a neutral third-party arbitrator (or panel of arbitrators) who then considers the evidence and makes a binding decision resolving the parties’ dispute. Decisions are considered final and binding on the parties. Arbitration provisions can be found in many professional agreements, including independent contractor and employment agreements. Arbitration is potentially a more efficient, less costly method to resolve disputes. However, a party who agrees to arbitrate typically waives certain rights such as to have a dispute be heard by a jury, and potentially certain types of damages that can be awarded in civil court. 

Illinois has new restrictions with respect to arbitration clauses in employment agreements under the Illinois Workplace Transparency Act which took effect this year. It applies to full-time and part-time employees, apprentices, unpaid interns, and to consultants and contractors who perform work for the employer pursuant to a contract. It does not apply to collective bargaining agreements. Under the Illinois Transparency in the Workplace Act, any arbitration clause will be void if it is presented as a unilateral condition of employment or continued employment. An arbitration clause may still be valid if it (1) is mutually agreed upon, (2) is in writing, (3) demonstrates actual, knowing and bargained-for consideration from both the employer and the employee, and (4) acknowledges the right of the employee or prospective employee their rights under discrimination laws and to seek confidential legal advice.

Employers and prospective employees should consider both the advantages and disadvantages to arbitration when deciding whether to agree to arbitrate their claims. In addition, parties should consider how certain contingencies might be handled by including certain provisions in an arbitration clause. For example, the parties can decide what law will apply to the arbitration clause, what subjects are arbitrable and which party or both will pay for the arbitration.

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Articles distributed by Malecki & Brooks Law Group, LLC are advertisements and summaries for general information and discussion purposes only.  They are not full analyses of the matters presented, legal, or otherwise, and may not be relied upon as legal advice. 





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