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Civil Litigation -
Alternative Dispute Resolution - Arbitration

Northern California Civil Litigation Information

"Arbitration" is basically an abbreviated form of civil litigation, and is an alternative way to resolve civil disputes. The outcome of an arbitration is determined not by a jury or a court, but by an "arbitrator." An arbitrator is usually a retired judge or practicing attorney who is experienced in litigating the type of legal dispute to be arbitrated. Arbitration refers to the entire process of arbitrating, which includes some type of initiating document prepared by the plaintiff with allegations against the defendant, a response from the defendant, an exchange of discovery between the parties, and then an "arbitration hearing" which is basically an informal trial (i.e., there is no jury, evidentiary rules are usually relaxed compared to a real trial, and it typically is not recorded by a court reporter.)

In general, there are two types of arbitration: (1) "judicial arbitration," and (2) "non-judicial arbitration." Although it might seem counter-intuitive, judicial arbitration is "non-binding," which means the losing party can reject the arbitrator's decision and request a trial de novo, i.e., a new trial on the matter. Non-judicial arbitration is typically "binding," meaning absent extraordinary circumstances, the arbitrator's decision is final and not appealable.

In California, each county has "local rules" which supplement State laws governing legal procedures for civil lawsuits. Local rules typically require the parties to a civil action to submit the dispute to "judicial arbitration." The arbitration hearing usually takes place after at least some preliminary discovery has been completed so that admissible evidence can be submitted for consideration to the arbitrator in document form.

Mediation

As stated above, there is a strong public policy in favor or settling legal disputes out of court. Most cases (probably over 90%) settle without going to trial. To further the public policy in this regard, courts encourage the parties to participate in settlement discussions through a process referred to as "mediation." Mediation is basically similar to a "Mandatory Settlement Conference," except that: (1) it is not court ordered, and (2) the parties have to pay the mediator's hourly rate.

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