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Arbitration Procedure Can Be Helpful In Settling Disputes

Question

Trudi K.
Almaden Valley

Dear Trudi:

Your questions are good ones that many people who are involved in litigation may be wondering about.

A few years ago, mandatory arbitration procedures were adopted by local courts and by the Legislature in Sacramento. Under these rules, and with very few exceptions, most cases are referred to nonbinding arbitration prior to trial.

This is a form of alternate dispute resolution that is becoming more and more popular, because of the high costs of trials in the courtroom with accompanying uncertainty and risk. The arbitration procedure has proved to be very effective in increasing the number of cases that settle prior to trial.

The advantage of nonbinding arbitration is that your case is presented to an experienced, impartial arbitrator who is qualified to give an opinion as to what you case is worth. In this manner, you can receive an informed opinion by someone totally unconnected with your case, and use that information in evaluating the merits of your case and its future progress.

If both sides agree prior to or at the arbitration hearing, they can make the decision binding and final for both sides. Otherwise, the arbitration procedure remains nonbinding.

That means that the unhappy side can reject the award within a short time after the award is made by the arbitrator. In other words, if you lose, you can reject the arbitrator's decision and apply for a court date and off to trial you go.

Arbitrators are chosen at random from a list maintained by the Arbitration Office at the courthouse. These people are well qualified and experienced to hear the kind of case in which you are involved.

Typically, your case will be assigned to arbitration at a status conference or at a case management conference, well ahead of your usual trial date. Most proceedings in court are held in abeyance until your arbitration is completed.

After the arbitrator is selected from the list maintained at the courthouse, the arbitration date will be set by mutual agreement. At least 20 days prior to the hearing, both sides will submit records, written reports, bills, accident reports, and related documents.

Both sides may also subpoena witnesses and file a "Notice of Intent to Offer Deposition in Evidence." Twenty days prior to the arbitration hearing, the parties may also forward a "Notice to Attend Arbitration and Produce Documents."

Ten days prior to the hearing, either side may submit a written demand that an author of a written statement be produced at the hearing.

Five days prior to the arbitration hearing, documents are lodged with the arbitrator and an arbitration brief is submitted by both sides. In the arbitration brief, the attorneys will summarize the essential facts and circumstances of the case, attach any other documents that may be appropriate, and summarize the case properly for the arbitrator.

The arbitration hearing itself is typically conducted in a conference room of the arbitrator's office. The arbitrator is often an attorney or retired judge serving as an arbitrator for that particular case. Proceedings are generally quite informal, although proper decorum is always maintained. Most cases are heard within one to three hours, but his could vary considerably depending upon the complexity of the particular case.

After the arbitrator has heard both sides, he or she will generally take the case "under submission." This means that the arbitrator will study the case in detail after the parties leave, perform any research needed, analyze all particular data, and then make a decision. The rules provide that the arbitrator shall make a decision within 10 days after the hearing.

Once you receive the decision, you have 30 days from the date that the award is filled to reject the award. During this time, you will have an adequate opportunity to discuss the pros and cons of your case with your attorney and take any other action that may be appropriate in order to reach an informed decision.

For several years now, the arbitration program has had much success. Many, many cases are settled now that may well have ended up in the courtroom in prior days with accompanying expense and risk for all parties concerned.

So, Trudi, in answer to your question, "Is this really necessary," I believe the answer is yes, it is necessary. It is not "just a way for your attorney to increase her fees."

The arbitration route is a very positive procedure to use in an effort to reach an amicable settlement of your dispute.