The court reviewed Kyocera and Gateway and observed: "Notwithstanding those cases, we do not believe it is a foregone conclusion that parties may effectively agree to compel a federal court to cast aside Sections 9, 10, and 11 of the FAA." It then quoted at length from Judge Mayer's dissent in Kyocera and concluded by emphasizing its view of the differing role of the courts in reviewing arbitration awards and judgments from a court of law. Because the holding of UHC was based on the parties' intent, the thoughts of the Eighth Circuit regarding this matter can be accurately characterized as dictum. However, there is no doubt that it, like the Seventh Circuit in Chicago Typographical Union, finds contractual provisions requiring the courts to apply contractually-created standards for judicial review of arbitration awards to be dubious.

After Kyocera and UHC the tally stands at two United States Circuit Courts of Appeals approving contractual opt-in provisions and two United States Circuit Courts of Appeals effectively rejecting those provisions. Given this diversity of judicial opinion in the federal circuit courts of appeals, it is fair to say that law remains in an uncertain state.

4. The few state courts that have addressed the "creating jurisdiction" issue are similarly split. In Dick v. Dick, 534 N.W.2d 185, 191 (Mich. Ct. App. 1994), the Michigan Court of Appeals characterized the contractual opt-in provision before it (which permitted appeal to the courts of "substantive issues" pertaining to the arbitrator's award) as an attempt to create "a hybrid form of arbitration" that ["did] not comport with the requirements of the [Michigan] arbitration statute." The Michigan court refused to approve the broadened judicial review and held that the parties were instead "required to proceed according to the [Michigan arbitration statute]." The appellate court observed further that "[t]he parties' agreement to appellate review in this case is reminiscent of a mechanism under which the initial ruling is by a private judge, not an arbitrator. * * * What the parties agreed to is binding arbitration. Thus, they are not entitled to the type of review [of the merits of the award] they agreed to."