A Litigator’s Dilemma

A short while ago, CAMS published a short article regarding arbitration and how “forum shopping” can be a problem. Recent news stories regarding a similar process, known as “Private Judging,” suggests the issue may be more wide-spread and sinister.

With the old opinion that the only things certain are death and taxes, this author would add, whenever private money is involved, particularly significant sums, irregularities can be expected. Based upon my limited orbit of professional friends and colleagues, my observation has been that, within that orbit, ADR specialists (Arbitrators and Mediators) value their integrity above large paydays. But with every new case invitation for an (particularly) arbitrator, the lure of reliable future engagements looms.

The arbitration system has built into the disclosure requirement for arbitrators, the requirement that we disclose personal and professional relationships between arbitrators, lawyers and parties in disputes. A sure way to have an arbitration award vacated (the “third rail” of arbitration), is for an arbitrator to fail to disclose any pertinent detail, especially one that may raise the specter of conflict.

In today’s world, I suspect it is rare for a businessperson to avoid the heartbreaking event of a colleague, employee or trusted friend committing a damaging or illegal act against us. I remember the first time this happened to me, I was dumbfounded. I do not claim to be a morally perfect person, but as it had never occurred to me to steal from or harm someone who had invested their trust in me, I believed those to whom I had bestowed my unconditional trust felt likewise. As I have matured and suffered disappointments, the world has grown murkier.

Our system of public appointed or elected judges endeavors to eliminate temptation for a judge to tilt the scale in a case for personal gain. At least in movies and television, it is not as rare as we hope, and we see an occasional headline about a judge who succumbed to temptation or who so envy the expensive world of private judging that they want to get a head start on their retirement careers with a private ADR provider. I believe those individuals to be vanishingly rare thus minimizing the risk to litigants of judges who can be “bought.” Yet, because of the crowded court dockets and delaying tactics employed by litigants, litigating cases in the courts can be a very slow, expensive process.

Also, particularly in cases involving large entities with whom has a dispute, contractual provisions require private judging or its first-cousin, binding arbitration. Those provisions are enforced in all but very particular situations. Consequently, one party is forced into the private market by a contract but is unsophisticated in the private trial/arbitration system which may, and probably does, have different rules and procedures from civil courts.

The Probable Solutions: Lawyers and their clients must demand clear and complete disclosures by their private judge/arbitrator panel. If one sees something in the disclosure that gives her pause, challenge the nominated judge/arbitrator to explain or simply disqualify the nominee. One should not be concerned about offending the nominee as nominees know the downsides of a truthful disclosure. If, during the process, but after the judge/arbitrator (“selectee”) is selected, a party or lawyer is convinced the selectee is biased or conducting himself inappropriately, respectfully challenge that selectee giving her an opportunity to correct course. In many cases, if the selectee is part of a panel of an ADR provider service, that service may have strict disqualification rules that will disqualify a selected arbitrator/judge upon objection by any party. And one can always make a motion to disqualify under CCP 170.1.

The downsides to the disqualification process are: It can be expensive since the process begins again and usually the disqualified selectee will be compensated for work already completed and, as any trial lawyer who has unsuccessfully challenged a judge in the court system knows, there is always the risk of offending the challenged bench officer thus further jeopardizing the case outcome. Because of the post-decision limitations on correcting or overturning a private ruling/award, the appellate process may be foreclosed and, unless an unhappy party can get the award vacated (applicable to arbitration), the award, good or bad, will become a judgment.

Head off the problem by researching and “shopping” for a reliable, qualified judge or arbitrator. Google the person, search the internet, ask questions of colleagues. Do everything that can be done to find a quality person to try or arbitrate your case. To be sure, it is unlikely that one will find any private judge or arbitrator who has not irritated someone in the past (after all, someone loses in 100% of tried cases). That is the bane of decision makers. So, consider the criticisms you find and sort out the “sour grapes” from justified criticism.

Don Cripe

Donald Cripe is a Law Professor (Mediation/ADR), Univ. of La Verne College of Law; Superior Court Judicial Arbitrator since 1996—having conducted several hundred arbitrations; Settlement Judge since 1996; Family Law Mediator-Riverside Superior Court Mandatory Dispute Resolution Conference Program; General Mediator-Dispute Resolution Services, Riverside; Civil Mediator- Riverside County Superior Court; Riverside… MORE