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Arbitration: 5 Considerations for You and Your Attorney

by | Nov 8, 2023 | Employment Law |

What is Arbitration?

The general rule of thumb for employees is “Don’t sign an agreement with an arbitration clause in it.”

Why? Arbitrations are proceedings that take place in private, outside a courtroom, without a jury and with very few procedural rules.  An arbitrator is typically a retired judge or an attorney at the end of their career who decides how the proceedings will run, and who issues an ultimate decision on whether you win or lose your case.  Arbitration filing fees are extremely expensive and thereafter, arbitrators bill by the hour, leaving the ultimate cost of arbitration in the tens of thousands or even more.  As compared, a court filing fee is not likely to exceed a few hundred dollars.

Our courts require arbitration clauses to contain some very specific language to be enforceable.  Yet, our court dockets are overwhelmed, and where the arbitration clause even presents a colorable argument of validity, it is likely to be enforced.

5 Arbitration Considerations for You and Your Attorney

If you happen to find yourself with an enforceable arbitration clause, here are some things your attorney will discuss with you:

  1. Who is the right person to pick as arbitrator?  Through most arbitration venues, each side is provided with a list of 10 names from which the parties are asked to pick 3-5 and rank them in order of preference.  This is an important step and requires a deep dive on each name to ensure that you are getting someone who is the most qualified and “neutral” and perhaps, even most favorable to your issues.  
  1. What are the limitations on discovery? Most arbitration proceedings do not follow the local court rules and so the party compelling arbitration is able to play a lot of discovery games during the process.  However, at the outset of the matter, your attorney, the arbitrator and opposing counsel will need to define the rules of the road, especially if there are discovery issues related to electronically stored information.
  1. The benefits of arbitration: The arbitration process moves quicker than the courts, which tend to be overburdened by cases.  Arbitrators are usually handling a smaller docket of cases and can devote the time to case management and issues as they arise rather than requiring formal motions to be filed.  However, make sure that opposing parties are not taking advantage of this speed to prevent you from having the full scope of information you need to get a fair hearing on the issues.  
  1. Educating the arbitrator: Your attorney will not take anything for granted when it comes to educating the arbitrator about the issues and the law.  While you may believe that you have selected an arbitrator who is experienced in employment law, they may not be experienced in specific nuances of the issues you are raising in your case.  
  1. Confirming the award: Having gone through a private arbitration process, and won, your attorney will now need to docket that award in the Superior Court of New Jersey to confirm it as a judgment and to collect on that judgment.  This is an additional step that you have to take when coming from arbitration.  Be prepared that this provides yet another opportunity for defendants to argue that the arbitration process was unfair or that the arbitrator has committed some egregious error which requires that the award be vacated.

These are just a few of the important milestones that you will encounter in your arbitration process if you are so unlucky as to be stuck with an enforceable arbitration clause.

Picking an Attorney

If you find yourself with an enforceable arbitration clause, you’ll need to enlist the help of a lawyer you can depend on. Hamilton Law Firm is well-versed in the intricacies of arbitration and can ensure you are prepared in these circumstances. Please contact us for a consultation.