Don't Be Afraid, It Can Be Better Than Court
posted by Karl Gerber | Jan 18, 2010 10:59 PM [EST] | applies to California
If you are in California and are being forced into private, binding arbitration do not be afraid.
I have found that it is easier to win a binding arbitration than a jury trial. The atmosphere is more relaxed. Evidence can be taken via witnesses calling in on the phone.
You will get to do your arbitration on the day it is set to go. Most court trials involve you having to show up multiple times only to hear the case is continued. In court many judges are not candid about your case starting when it is supposed to. You get all ready to do your case and then the judge continues it. This is a disaster if you have a lot of witnesses ready to testify, or an expensive expert witness who charges each time the case is continued. It is also very difficult for your lawyer to commit to each trial date when the judge gives 3-4, or more, before the case actually starts.
Make sure your lawyer correctly estimates the time for arbitration, and he wins a battle where the company lawyer provides an unrealistic estimate to save money or fragment the process. If the arbitration is not scheduled for the right number of days the arbitration can end up being heard for a few days to start and then fragmented days into the future. Arbitrations not heard all at once are bad. Arbitrators are only human and they forget (especially when there is no written record of what the witnesses are saying).
The arbitration will be in a nice office building opposed to a public courthouse where everything is falling apart and you have to wait in the hallway on a bench.
Make sure your attorney treats the arbitration as seriously as he/she would a court case. Binding arbitration is final. It is your only shot. If your attorney is well prepared and does a good job of selecting the right arbitrator you will be ok. Your attorney should also get discovery rights and conduct discovery. Without discovery (asking questions in the mail and questioning witnesses under oath) it is difficult to crack cases involving suspect terminations, or sexual harassment situations in which they are claiming the investigation did not show sexual harassment.
Arbitrations involve less of an ability to appeal, and fewer strange motions that run the risk of your case being dismissed techinical grounds.
Make sure your lawyer is on top of the arbitration. Make sure enough time is allowed to conduct discovery (asking for documents, questioning witnesses in person, asking questions in the mail). However, make sure the arbitration is moving along and the employer is not seeking to cause delays in refusing to allow discovery. Finally, be weary of very popular arbitrators. Very popular arbitrators may have calendars that prevent your hearing from being heard for a long time. Make sure your lawyer has experience with binding arbitrations. Many lawyers have a lot of experience in court, but don't know of the various pitfalls that might occur in arbitration which are described in this article.
There is a lot of talk that arbitrators award less damages. Studies show it is easier to win arbitration. Do you want less damages, or a loss? However, studies show arbitrators are not so cheap. Arbitrators are upper income individuals. $50,000 to an arbitrator is not a lot of money. The arbitrator is probably going to earn $30,000 or more just doing your arbitration for a week. A juror who earns $30,000 is probably less likely to award you $50,000 for emotional distress or something not so concrete. Even a juror earning $50,000 or $80,000 a year is going to value money differently than a retired judge, or attorney acting as a professional arbitrator with earning potential of $150,000 a year to $1,000,000 or more a year.
This article applies to California where employers have to pay the costs of your arbitration. If you are in a state that requires employees to pay the arbitrator's fees and costs associated with arbitration, the above does not apply. Few lawyers for employees will advance tens of thousands for the employee's half of the arbitrator so if you are in a state where the employee still has to pay half or all of the costs of arbitration it is not a viable forum.
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