Arbitration


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BINDING ARBITRATION .. Another name could be secret trial .. It is being presented as an alternative to the normal court process.


It is promoted as less expensive and quicker.


If the award is satisfied voluntarily there will be no need for a public record of any judgement to be filed. This can be a benefit in keeping your credit report in good condition.


In our experience with this process we found the following.


There was no written record of the proceedings required.


Any decision by the arbitrator does not have to be supported with points of law.


The outcome does not become a part of public record unless the award is confirmed by the court.


There is no disclosed right to appeal binding arbitration unless you can prove serious misconduct and as such there is no oversight protection for either party.


All activity is conducted behind closed doors.


There is no appeal process that we have found.


The award is final.


The parties are prohibited from discussing the proceedings publicly.


Since there is no record of the proceedings to use when evaluating your own situation or to guide you as to using arbitration or not, any decision about moving forward is difficult.


In situations where there is no case law to research, there will absolutely be no opportunity to have a case certified for future reference or to look at how a particular arbitrator makes their decisions. You may also find that some decisions by the arbitrator will be about their right to hear the case, or even regarding their own conduct, which would have the appearance of a conflict of interest.  


In any case, the potential for fraud or misconduct is great.


According to an article in the California Association of Realtors, Arbitrators in California do not have to follow the law. There may be some constitutional issues with this procedure, but with the courts so crowded, an alternative is being sought.


In cases where arbitration as a condition of employment, this may have the appearance of a right to work issue.What can this mean to you.  DANGER. You may be committing to a process not beneficial to your interests. It has been suggested that the proper time to agree to arbitrate is when the facts are known and the parties to an arbitration have discussed and agreed to the details of the process.


Some areas that might be considered are limiting the fees to be paid for lawyers, others and the arbitrator, how a record of the proceeding is to be kept, if any, having the arbitrator justify the decision, whether or not to use a court reporter, how any award will be constructed, where the proceedings will be conducted, what organization will be used as the source for the arbitrator.


We do not believe an arbitrator must be a lawyer or judge. You can agree to use an expert in the field of dispute,  and instruct them as to how the parties expect the hearing to be conducted. This is not to be considered legal advice and you should

always consult with an expert before  proceeding.