Judicial Arbitration
About Judicial Arbitration
Judicial Arbitration is like a trial. But it is less formal and there is no jury. Each side presents its case to a “neutral” person, also called “arbitrator.” The arbitrator is either a lawyer or a retired judge, and does not take sides or give advice. For more information, see the frequently asked questions below.
You and the other party can agree to use judicial arbitration before you have to come to a court date. Or, in cases where you and the other party cannot agree on any kind of ADR, the judge can send your case to judicial arbitration.
You must file a form called a stipulation (ADR Stipulation and Order form ) at least 5 days before your first court appearance, if you have already agreed to arbitrate and you want to skip the first court appearance. The clerk will take your case off the calendar, and give you a new date after your arbitration.
Yes. You must file this form:
This form is required by California Rule of Court 3.725 . You can get this form by clicking on the link above, or get it from the Court Self-Help Center or from stores that sell legal forms. If you do not file this form, you may get in trouble with the court, and the judge can order you to pay a fine.
The Court’s arbitration department will send everyone a list of arbitrators. Each party can cross one name off the list, then return the list to the arbitration department. You can view, search and print lists of arbitrators - see the Finding a Judicial Arbitrators page in the Civil Division section of this website. If one of the proposed arbitrators is not listed, you can check the State Bar of California website at www.calbar.ca.gov to find the arbitrator's contact information. You can call the arbitrator's secretary to request a resume of the arbitrator. You cannot speak to the arbitrator. You cannot discuss your case with anyone at the arbitrator's office. The arbitration department will send you a notice with the name of the arbitrator assigned to your case.
No. You cannot call any of the arbitrators on the list. They are not allowed to talk to you or your lawyer before the arbitration. Their office staff can only talk to you about setting a date for the arbitration session.
The arbitrator will contact everyone, usually by letter, to ask what dates you can attend a session. The arbitrator will set up the session and let all parties know the date, time and place of the arbitration session.
Judicial arbitration is usually free for the parties. The Court pays a small fee to the arbitrator. If your arbitration takes more than five hours, the arbitrator may charge you a fee. (Most arbitrations take three hours.)
Most arbitrations take about three hours. If you think your case will take more than five hours, let the arbitrator know before the arbitration starts.
The parties and/or their lawyers must go. You can also call or subpoena witnesses to testify at your session.
The arbitrator acts like a judge and decides who is responsible, and how much money must be paid. Unless you and the other party ask for a “binding” or final decision, the arbitrator will give you a decision that predicts the probable verdict of a Santa Clara County jury. This kind of decision is not final for 30 days. Either party can “reject” the decision and tell the court to throw it out. Then the case will go on to trial.
”Discovery” is when the parties give each other information about the case. Read California Rule of Court 3.823 to know what kinds of evidence (like papers and witness statements) you must give the other party, at least 20 days before the arbitration hearing. Unless the parties agree to something else, discovery usually ends 15 days before the date of your arbitration session. You can agree to “keep discovery open”, and you will be able to give each other information after the arbitration, up until 30 days before trial.
You can give the arbitrator a brief. (A brief is the short review of the important facts about your case.) You must also give (serve) a copy to the other party. Do not mention settlement discussions in your brief, and do NOT file the brief with the Court. You should send the brief only to the arbitrator and the other party, or their lawyer if they have one.
Most arbitrators will ask you to testify, or tell your story, at the session. The arbitrator will ask you questions and allow you to ask the other party questions. You can also submit written “evidence” or papers, as long as you have followed California Rule of Court 3.823 . Within 10 days after your session, the arbitrator will send the decision, which is called an “award”, to the parties or their lawyers, and file it with the Court.
Yes. “Confidential” means that you can’t tell anyone about what was said or the papers that were talked about at the arbitration session. No one can talk about the arbitration or any evidence presented in the arbitration during the trial. If you want to talk about something in trial, you must bring it to the trial and present it to the judge as evidence in the trial. The judge will decide if you can discuss the evidence in the trial.
Yes. If everyone wants to mediate, you can change from arbitration to mediation. You and the other parties must fill out and file a form called ADR Stipulation and Order . This tells the Court the name of the mediator you have agreed on and the date of your mediation session.
Yes, you have 90 days from the date the arbitrator was assigned to finish your arbitration. If you need more time, you and the other parties must fill out and file a “Request for Extension” asking for more time. The arbitrator and all parties must sign this form. You must say why you need more time and list the exact date of the arbitration session. The Court will let you know if they accept your Stipulation. You must include a self-addressed, stamped envelope with your Stipulation.
In judicial arbitration, the arbitrator’s decision (award) is not “binding”, or final, until 30 days after it is filed with the Court. This means you and the other party have 30 days to review the decision. You can check with the Court to see what date the award was filed. You can reject the decision during those 30 days. But, if you or the other party does not reject the decision by the 30-day deadline, the Clerk will automatically enter a judgment. That means the arbitrator’s decision will be final, and you will have to live with that decision.
Yes. If you or the other party does not like the decision, you can reject it. If you reject it, your case will go to trial. To reject the decision (award), file a “Request for Trial De Novo (ADR-102) ” form within 30 days after the award was filed with the Court. You must also file a Proof of Service to show that the other party knows about your decision.
If the arbitrator’s decision is rejected, the Court will set a new Court date called a Case Management Conference. At the Case Management Conference, the Court will give you a date for your trial.