One who takes the benefit (of arbitration) must bear the burden

I recently had the pleasure of participating in a panel discussion sponsored by the Women Lawyers Association of Los Angeles on the topic of stresses on the Los Angeles County Superior Court and how they may affect trial availability and increase the use of arbitration.

Fortunately, the consensus of the litigators with whom I have spoken is that cases are getting out to civil trail courts on the dates set for trial, although getting timely motion hearings has been difficult, and motions for continuances seem to be granted more frequently than in the past.

The panel addressed the advantages of arbitration, as well as some of the common perceptions of disadvantages.

Civil Code Section 3521: He who takes the benefit must bear the burden. Don't you love the maxims of jurisprudence? Anything that starts with "He who..." has got to be great. (Maybe it is time to change them to "One who...?) So how does this relate to arbitration? Well, there are benefits and burdens associated with arbitration, and our panel explored them.

The benefits

Ability to pick your decision-maker. The ability to choose your decision-maker is a significant issue in civil litigation. There is increasing uncertainty of outcome, and, with personal injury cases in Los Angeles County now being referred to master calendar courts, even uncertainty of who your trial judge will be and where the case will be tried.

Attorneys in California are licensed as "attorney and counselor at law"; it is difficult to counsel your client on the value of a case for settlement or potential outcomes at trial when the venue is uncertain.

In arbitration the parties have the opportunity to select an arbitrator who will have an understanding of the issues of the case and a reputation for fairness. This is a significant plus for proceeding in arbitration.

Ability to design the process. Want to limit discovery? Want to agree to a right to appeal even though not usually available in arbitration? Want to submit depositions and records for review by the arbitrator in lieu of live testimony?

The choice is yours! The parties have a wide range of issues that can be tailored to your specific case in an attempt to speed the process and get to a fair and equitable result.

Certainty of hearing dates. While our courts are doing a wonderful job getting matters out to trial, there is the very real concern that the system will bog down in the future. With arbitration, the parties, attorneys, percipient witnesses and experts have certainty of the hearing dates, as well as the location, and can plan accordingly.

Discovery is less extensive and more directed. The parties have the ability to define the scope of discovery, phase it where appropriate, and get the information really necessary to the case. Arbitrators have the ability to work out a discovery plan with counsel and get the case moving and ready as soon as reasonable with as little expense to the parties as is possible.

Confidentiality. Arbitrations are confidential; indeed, most often the only people in the hearing room with the arbitrator are the parties, their attorneys and the witness. Most often there is not even a court reporter. No TV cameras, no press, no media, no TMZ.

This, my friends, has value. Not only in the entertainment-related arena, but where the parties just would rather not air laundry in public, and where the participants need not be concerned about how it looks to anyone other than those really involved in the dispute.

Informality of settling. Courtrooms are intimidating; a conference room far less so. Many litigants and witnesses have commented on the comfort of testifying in arbitration, a phenomenon seldom experienced by me on the bench. A relaxed environment helps the process of justice, as a relaxed witness is more likely to give helpful testimony to the trier of fact than one who is guarded due to the intimidation of the setting.

Certainty of outcome. Appeals are rare, and the grounds for judicial review of an arbitration award are few. Win or lose, certainty of outcome is of value to the parties, who have litigated to the fullest, obtained a fair hearing, received the reasoned award, and now are able to "move on." Therein lies additional value - the ability to close the book and move on.

The burdens

Not all of the factors of arbitration are perceived as benefits.

Lack of the right to appeal. Indeed, the usual lack of a right to appeal is often cited as a detriment of arbitration. When on the trial court I was pleased to have a Court of Appeal; if I got it wrong, I wanted someone there to fix it. The general rule is that the award of the arbitrator is final and not subject to appeal. That is giving away a substantial right and needs to be thoughtfully considered by the parties.

"Splitting the baby." I spent two challenging and very interesting years on the family law bench as a judge. When writing a particular child custody award, I had researched the law and found an opinion of the inimitable Justice Arthur Gilbert on the subject of child custody in which he opined in the first sentence that "Solomon had it easy...."

Judges are not asked to "split the baby." We, whether on the bench or as arbitrators, are asked to make difficult decisions and apply the law to the facts to the best of our abilities. While arbitrators are granted greater discretion to do equity, they are still difficult decisions.

I think this comes back to the issue mentioned above regarding selecting the arbitrator. You know their reputations, and you can select one who will make the difficult decisions when necessary, or perhaps "spilt the baby" when appropriate and equity demands it.

Most arbitrators, however, do not opt for the compromise position; litigants deserve and expect a decision based on the facts and law, and will get it.

Cost. Often the parties raise the question of cost when deciding whether to proceed to arbitration rather than a superior court trial. Admittedly the court does not charge a fee for the use of the courthouse, but there are jury fees and other court costs, although not as significant as the charges of a private arbitrator.

The real issue is time. In a court trial the litigants get about 4-5 hours of court time a day, and the day generally ends promptly at 4:30. In arbitration the days are longer, generally 9 am to 5 pm with a shorter lunch break, and the schedule is far more flexible to accommodate the schedules of witnesses, often going late into the evening to complete the testimony of a witness.

The cost of the arbitrator is offset by the efficiency of the proceedings, and the six day jury trial is easily concluded in three days.

It's not likely they do it in court...

Many differences exist between a trial and an arbitration, from the pleadings to discovery to the admissibility of evidence at the hearing. Many litigators are not comfortable with the more relaxed rules and environment of arbitration.

This is a very real concern, and the parties and their counsel need to know what is expected of them and what to expect from the arbitrator.

It is not like they do it in court, and often that is a very good thing.

How do you decide?

In addition to cases arising from a contract that requires a matter to be submitted to arbitration, and many do, civil litigants are more frequently considering stipulating to arbitration. Each case should be evaluated by all sides, and, where appropriate, arbitration may prove to be a more certain, less expensive and quicker alternative to a jury trial.

Some cases or clients just need to go to trial before a "real judge" or jury, and others are well suited for arbitration. It is good to have an alternative, and the system benefits from having a choice.