A JURY OF YOUR PEERS?

Most jury verdicts do not end up in the news.  Generally, they play out in courts across America with very little fanfare. No cameras, or reporters, no Nancy Grace.

But every so often, and mostly in criminal cases, the jury’s verdict is so inconsistent with the court of public opinion that it becomes a headline and calls into question the American concept of justice. Despite the disparities, no one has proposed a more effective system than a jury of your peers.  Or have they?

For California employers, there is an alternative to jury trials, and a good one. It’s called arbitration. Case law indicates that in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, the California Supreme Court ruled that arbitration clauses are valid provided certain requirements are met.

Significantly less costly than court litigation, arbitration is private and less likely to grab headlines. It is usually faster and less contentious. Arbitrators are often retired judges or senior, experienced private lawyers who remain interested in law. Consequently, they are typically well-respected and seasoned professionals who are the triers of fact.

In Brown Law Group’s experience handling employment law cases, attorneys have found that arbitration has the potential to reduce employer’s risk assessment in these cases by at least 50%.

Given the unpredictability of jury verdicts, the business benefits  of arbitration, and the flurry of articles encouraging its use, it’s unclear why more employers don’t favor arbitration agreements. Some simply may not be aware of the benefits arbitration can offer, but here are a few possible reasons why they don’t.

Some employers believe that employees who have claims should file them in court and incur all of the associated costs. These employers may feel that the time, expense and difficulty may actually work to their benefit.

Others who have employees in numerous states with different legal standards for arbitration agreements seek uniformity in all states; however arbitration in some states is wildly inconsistent.

Employers may also be too busy conducting their day to day business as opposed to effectively managing it. Management’s primary job is to increase profits, and arbitration agreements can help them do that. Litigation, even if successful, is expensive.

Some employers are uncomfortable waiving their right to appeal or believe that under California case law they must bear the cost of the entire arbitration process. These are legitimate concerns.

But on balance, California employers would be wise to at least consider using arbitration agreements because most juries, even the most well-intentioned ones, cannot be considered management’s peers.

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