In recent years lawyers have begun using the term “ADR,” which refers to so-called “alternative dispute resolution” procedures and forums, and which means generally “alternatives” to litigation. High on the list of such alternatives to litigation is the process known as “arbitration.”

About Arbitration

Arbitration takes many diverse forms, and can vary widely from one forum and one context to another. In many cases, its actual procedures can be governed by contract or agreement between the parties, entered into before or after a dispute has arisen between them. It is generally designed and is expected to limit the amount of pre-hearing “discovery,” or factual and legal investigation by the parties; and to be less expensive and less time-consuming than litigation.

The Process

The “trier of fact” or decision-maker in an arbitration proceeding is a single appointed arbitrator or an arbitration panel. The parties present their cases at an “arbitration hearing.” Neither the federal nor State of California rules of evidence apply. The arbitrators can but are not required to be lawyers; and under California state law they are not required to know or to follow the law. They are required to be free from bias and prejudice, and to render a fair, impartial and equitable result, based on all of the evidence presented at the hearing. The grounds and bases for appeal of an unfavorable result are extremely limited, and in the vast majority of cases, any attempt to appeal the arbitrators’ award would be futile and not recommended. The parties themselves pay the arbitrators for their time, and pay the arbitration forum for the use of hearing sites and facilities.

Arbitration In Securities

In the securities area, most cases involving a broker dealer/customer relationship are required to be arbitrated before the Financial Industry Regulatory Authority (FINRA), or some other mutually acceptable arbitration forum. This is so because virtually every brokerage firm requires that its customers sign an opening account agreement containing a binding arbitration clause as a condition to opening an account and doing business with the firm. While there are a variety of facts and circumstances that may make litigation more appropriate for a particular dispute, in most cases this arbitration clause will be enforced, and the parties will be required to resolve their dispute through arbitration.

Arbitration In Real Estate

Arbitration is widely, and very successfully, used in real estate cases. With certain exceptions, notably multi-party construction defect cases, for which a well-reasoned and well-implemented protocol has been developed in the San Diego courts, arbitration may be the most cost-effective and satisfactory means of resolving problems and disputes involving real estate issues.

Arbitration In Family Law

Arbitration is used less frequently in the family law/dissolution context. Nevertheless, it can provide an effective alternative means of resolving an entire case; or, more frequently, of resolving a discreet disputed issue or issues of property distribution. The parties to a dissolution proceeding are free to choose arbitration over litigation for any purpose they like.

Arbitration In Employment

Arbitration in the employment context, when it is alleged by an employer to be mandated by a previously executed employment contract or agreement with the employee, is currently limited in specific ways by California state law. Generally, the courts now require that the employee’s rights to discovery, to a finding of liability, and to damages, as provided under the State’s anti-discrimination statutes and laws, are not significantly abridged; that employees not be required to pay arbitrator and arbitration forum fees which they cannot afford; and that the arbitration closely resemble and provide many of the attributes and benefits of litigation in a court of law.

Experience In Arbitration

Virginia Gaburo has represented numerous parties in arbitration proceedings, has been an arbitrator for the San Diego Superior Court, the American Arbitration Association and Kaiser Permanente; and is currently an arbitrator for the Financial Industry Regulatory Authority (FINRA). She has extensive arbitration training, and many years of successful arbitration experience.

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