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January 13, 2015 by AmyN

This is the second article in the “Employment Arbitrations – Getting Back to Basics” series. Employment Arbitration is significantly different than commercial arbitration because courts – both state and federal – have imposed procedural requirements in employment cases not required in commercial arbitration agreements.

By now, all California employment-law practitioners are no doubt familiar with Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83 which established a minimum set of guidelines that employers must follow for a mandatory employment arbitration agreement to be valid under California law, including the following provisions. The arbitration agreement must

  • Provide for a neutral arbitrator;
  • Provide for more than minimal discovery;
  • Require a written award;
  • Provide for all types of relief that would otherwise be available in court; and
  • Requires employers to pay all fees above a reasonable “filing fee.”

Three years prior to Armendariz, the D.C. Circuit Court of Appeals had established similar requirements in Cole v. Burns International Sec. Servs., (D.C. Cir. 1997) 105 F.3d 1465.

Although it is not entirely clear that these requirements will continue to exist after AT&T Mobility v. Concepcion 563 U.S. 321 (2011), they undoubtedly contribute to the more-than-passing resemblance between litigation and arbitration of employment matters.

Even given the expanded discovery (versus commercial arbitration) required in employment cases, there is still much the advocates working with arbitrators can do to improve the efficiency of the process.

All arbitrations start with some sort of Case Management Conference. Although it may seem self-evident, the first thing advocates can do is to work cooperatively to establish procedures and a calendar for the arbitration prior to the initial conference with the arbitrator. Too often, counsel appear at the initial conference without having conferred about these basic procedural matters. Then, they complain when the bill for the Case Management Conference seems excessive. More experienced counsel will submit a proposed scheduling order in advance of the conference. This scheduling order will establish at a minimum:

  • Hearing Date/Time/Location
  • Discovery Procedures and Deadlines
  • Dispositive Motions and Deadlines
  • Deadlines for Exchange of Hearing Documents (Exhibit List, Witness List, Stipulated Facts, Briefs)
  • Whether a Court Reporter will be used

If counsel have agreed on all of these issues, the initial Case Management call will proceed much more quickly and set the case up to be handled efficiently. Counsel should not wait for the Case Management Conference to discuss these basic issues.

Michael H. Leb is a an ARC neutral who mediates and arbitrates all types of private and public sector disputes with special emphasis on labor and employment law matters.


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