Services - Arbitration

ARBITRATION

When parties are unable to resolve a dispute, rather than file in court they plead for damages through arbitration. They seek the services of an arbiter an impartial third party or neutral. The parties agree in advance to accept the arbiter’s award barring fraud or intentional disregard of any applicable statutes. Occasionally, parties choose not to appear at a hearing and would rather submit the evidence they have to substantiate or prove their claim. In this instance the parties agree to accept the arbiter’s award solely on the evidence submitted. This procedure is known as an award on the papers. When a plaintiff chooses not to have a hearing before a sole arbiter or a panel of arbitrators it further minimizes costs and loss of time of an unresolved dispute. The arbiters of Thomas Resolutions adhere to the definitions and the Conduct that governs Arbitration Proceedings under the California Code of Civil Procedure:

California Code of Civil Procedure 1280 (2008)

§ 1280. Definitions

As used in this title:

(a) “Agreement” includes but is not limited to agreements providing for valuations, appraisals and similar proceedings and agreements and agreements between employers and employees or between their respective representatives.

(b) “Award” includes but is not limited to an award made pursuant to an agreement not in writing.

(c) “Controversy” means any question arising between parties to an agreement whether such question is one of law or fact or both.

(d) “Neutral arbitrator” means an arbitrator who is (1) selected jointly by the parties or by the arbitrators selected by the parties or (2) appointed by the court when the parties or the arbitrators selected by the parties fail to select an arbitrator who was to be selected jointly by them.

(e) “Party to the arbitration” means a party to the arbitration agreement:
   (1) Who seeks to arbitrate a controversy pursuant to the agreement;
   (2) Against whom such arbitration is sought pursuant to the agreement; or
   (3) Who is made a party to such arbitration by order of the neutral arbitrator upon such party’s application, upon the application of any other party to the arbitration or upon the neutral arbitrator’s own determination.

(f) “Written agreement” shall be deemed to include a written agreement which has been extended or renewed by an oral or implied agreement.

§1281. Agreement to Submit to Arbitration Enforceable Contract.

A written agreement to submit to arbitration an existing controversy thereafter arising is valid, enforceable and irrevocable;  save upon such grounds as exists for the revocation of any contract.

§ 1281.1. Consideration of Request to Arbitrate Pursuant to Written Agreement.

For the purpose of this article, any request to arbitrate made pursuant to subdivision (a) of section 1299.4 shall be considered as made pursuant to a written agreement to submit a controversy to arbitration.

§ 1281.6 Appointment of Arbitrators.

If the arbitration agreement provides a method of providing an arbitrator, that method shall be followed.  If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In an absence of an agreed method, or if the agreed method fails or for any reason cannot be followed,  or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

§1281.85 Compliance with Ethics Standards for Arbitrators; Exception.

(a) Beginning July 1, 2002, a person serving as a neutral arbitrator pursuant to an arbitration agreement shall comply with the ethics standards for arbitrators adopted by the Judicial Council pursuant to this section. The judicial council shall adopt ethical standards for all neutral arbitrators effective July 1, 2002.  These standards shall be consistent with the standards established for arbitrators in the judicial arbitration program and may expand but may not limit the disclosure and disqualification requirements established by this chapter.  The standards shall address the disclosure of interests, relationships, or affiliations that may constitute conflicts of interest,  including prior service as an arbitrator or other dispute resolution neutral entity, disqualifications, acceptance of gifts, and establishment of future professional relationships.

Subdivision (a) does not apply to an arbitration conducted pursuant to the terms of a public or private sector collective bargaining agreement.

§1281.96 Publication of Consumer Arbitration Information by Private Arbitration Company.

(a)Except as provided for In paragraph (2) of subdivision (b), any private arbitration company that administers or is otherwise involved in, a consumer arbitration, shall collect, publish at least quarterly, and make available to the public in a computer searchable-format, which shall be searchable at the internet Website of the private arbitration company, if any, and upon paper upon request, all of the following information regarding each consumer arbitration within the preceding five years:

(1) The name of the nonconsumer party, if the nonconsumer party is a corporation or other business entity.

(2) The type of dispute involved, including goods, banking, insurance, health care, employment, and, if it involves employment, the amount of the employee’s annual wage divided into the following ranges: less than( $100,000), one hundred thousand dollars, ($100,000) to two hundred fifty thousand dollars ($250,000), inclusive, and over two hundred fifty thousand dollars ($250,000).

(3) Whether the consumer or nonconsumer party was the prevailing party.

(4) On how many occasions, if any, the nonconsumer party has previously been a party in an arbitration or mediation administered by the private arbitration company.

(5) Whether the consumer party was represented by an attorney.

(6) The date the private arbitration company received the demand for arbitration, the date the arbitrator was appointed, and the date of disposition by the arbitrator or private arbitration company.

(7) The type of disposition of the dispute, if known, including withdrawal, abandonment, settlement, award after hearing, award without hearing, default or dismissal without hearing.

(8) The amount of the claim, the amount of the award, and any other relief granted, if any.

(9) The name of the arbitrator, his or her total fee for the case, and the percentage of the arbitrator’s fee allocated to each party.

(b)(1) If the information required by subdivision (a) is provided by the private arbitration company in a computer searchable-format at the company’s internet Web site and may be down loaded without any fee, the company may charge the actual cost of copying to any person who may request the information on paper.

(2) Notwithstanding paragraph (1), a private arbitration company that receives funding pursuant to Chapter 8 (commencing with § 465) of Division 1 of the Business and Profession Code, and that administers or conducts 50 or fewer consumer arbitrations per year may collect and publish the information required by subdivision (a) semiannually, provide the information only on paper, and charge the actual cost of copying.

(c) This section shall apply to any consumer arbitration commenced on or after January 1, 2003.

(d) No private arbitration company shall have any liability for collecting, publishing, or distributing the information required by this section.

§1282. Exercise of Powers by Arbitrators; Disqualification.

Unless the arbitration agreement otherwise provides, or unless the parties to the arbitration otherwise provide by an agreement which is not contrary to the arbitration agreement as made or as modified by all of the parties thereto:

(a) The arbitration shall be a single neutral arbitrator.

(b) If there is more than one arbitrator, the powers and duties of the arbitrators, other than the powers and duties of a neutral arbitrator, may be exercised by a majority of them if reasonable notice of all proceedings has been given to all arbitrators.

(c) If there is more than one neutral arbitrator:

(1) The powers an duties of a neutral arbitrator may b exercised by the majority of the neutral arbitrators.

(2) By unanimous agreement of the neutral arbitrators, the powers and duties may be delegated to one of their number but the power to make or correct the award may not so be delegated.

(d) If there is no neutral arbitrator, the powers and duties of a neutral arbitrator may be exercised by a majority of the arbitrators.

The powers and duties of a neutral arbitrator may be exercised by a majority of the neutral arbitrators.

(1) By unanimous agreement of the neutral arbitrators, the powers and duties may be delegated to one of their number but the power to make or correct the award may not so be delegated.
(e) If there is no neutral arbitrator, the powers and duties of a neutral arbitrator may be exercised by a majority of the arbitrators.

§ 1282.2 Conduct of Arbitration Hearings.

Unless the arbitration agreement otherwise provides, or unless the parties to the arbitration otherwise provide by an agreement which is not contrary to the arbitration agreement as made or as modified by all the parties thereto:

(a)(1) The neutral arbitrator shall appoint a time and place for the hearing and cause notice thereof to be served personally or by registered or certified mail on the parties to the arbitration and on the other arbitrators not less than seven days before the hearing. Appearance at the hearing waives the right to notice.

(2) With the exception of matters arising out of collective-bargaining agreements, those described in § 1283.05, actions involving personal injury or death, or as provided in the parties agreement to arbitrate, in the event the aggregate amount in controversy exceeds fifty thousand dollars ($50,000) and the arbitrator is informed thereof by any party in writing by personal service, registered or certified mail, prior to designating a time and place of hearing pursuant to paragraph (1), the neutral arbitrator by the means prescribed in paragraph (1) shall appoint a time and place for hearing not less than 60 days before the hearing, and the following provisions shall apply:

(A) Either party shall within fifteen days of receipt of the notice of hearing have the right to demand in writing, served personally or by registered or certified mail, that the other party provide a list of witnesses it intends to call designating which witnesses will be called as expert witnesses and a list of documents it intends to introduce at the hearing provided that the demanding party provides such lists at the time of its demand. A copy of such demand and the demanding party’s list shall be served on the arbitrator.

(B) Such list shall be served personally or by registered or certified mail on the requesting party 15 days thereafter. Copies shall be served on the arbitrator.

(C) Listed documents shall be made available for inspection and copying at reasonable times prior to the hearing.

(D) Time limits provided herein may be waived by mutual agreement of the parties if approved by the arbitrator.

(E) The failure to list a witness or a document shall not bar the testimony of an unlisted witness or the introduction of an undesignated document at the hearing, provided that good cause from omission from the requirements of paragraph (A) is shown, as determined by the arbitrator.

(F) The authority of the arbitrator to administer and enforce this paragraph shall be as provided in subdivisions (b) to (e), inclusive of § 1283.05.

(b) The neutral arbitrator may adjourn the hearing from time to time as necessary. On request of a party to the arbitration for good cause, or upon his own determination, the neutral arbitrator may postpone the hearing to a time not later than the date fixed by the agreement for making the award, or to a later date if the parties to the arbitration consent thereto.

(c) The neutral arbitrator shall preside at the hearing, shall rule on the admission and exclusion of evidence and on questions of hearing procedure and shall exercise all powers relating to the conduct of the hearing.

(d) The parties to the arbitration are entitled to be heard, to present evidence and to cross-examine witnesses appearing at the hearing, but rules of evidence and rules of judicial procedure need not be observed. On request of any party to the arbitration, the testimony of witnesses shall be given under oath.

(e) If a court has ordered a person to arbitrate a controversy, the arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party ordered to arbitrate, who has been duly notified, to appear.

(f) If an arbitrator, who has been duly notified, for any reason fails to participate in the arbitration, the arbitration shall continue but only the remaining neutral arbitrator or neutral arbitrators may make the award.

(g) If a neutral arbitrator intends to base and award upon information not obtained at the hearing, he shall disclose the information to all parties to the arbitration and give the parties an opportunity to meet it.

§ 1299.4. Basis for request to submit to arbitration; Panel members; Strikes; Employer’s duties.

(a) If an impasse has been declared after the parties have exhausted their mutual efforts to reach agreement over matters within the scope of arbitration, and the parties are unable to agree to the appointment of a mediator, or if a mediator agreed to by the parties is unable to effect settlement of a dispute between the parties after his or her appointment, the employee organization may, by written notification to the employer, request that their differences be submitted to an arbitration panel.

(b) Within three days after receipt of the written notification, each party shall designate a person to serve as its member of an arbitration panel. Within five days thereafter, or within additional periods to which they mutually agree, the two members of the arbitration panel appointed by the parties shall designate an impartial person with experience in labor and management dispute resolution to act as chairperson of the arbitration panel.

(c) In the event that the parties are unable or unwilling to agree upon a third person to serve as chairperson, the two members of the arbitration panel shall jointly request from the American Arbitration Association a list of seven impartial and experienced persons who are familiar with matters of employer-employee relations.  The two panel members may as an alternative, jointly request a list of seven names from the California Mediation and Conciliation Services, or a list from either entity containing more or less than seven names, so long as the number requested is an odd number. If after five days of receipt of the list, the two panel members cannot agree on which of the listed persons shall serve as chairperson, they shall, within two days, alternately strike names from the list, with the first panel members to strike names being determined by lot.  The last person whose name remains on the list shall be chairperson.

(d) Employees as defined by this chapter shall not be permitted to engage in strikes that endanger public safety.

(e) No employer shall interfere with, intimidate, restrain, coerce, or discriminate against an employee organization or employee because of an exercise of rights under this title.

(f) No employer shall refuse to meet and confer or condition agreement upon a memorandum of understanding based upon an employee organization’s exercise of rights under this title.