Labor and Employment Law

Ca. Labor & Emp't Rev. MARCH 2024, VOLUME 38, NUMBER 2



Noah D. Lebowitz

From its origins, the foundational concept of arbitration as an alternative to the traditional court system was rooted in the recognition that court proceedings tended to be lengthy, costly—and unnecessarily bogged down in formal rules and procedures. The original Federal Arbitration Act (FAA),1 enacted in 1925, required courts to endorse consenting parties’ binding contracts with provisions requiring that any future disputes between them would be resolved through this alternative venue.2 The FAA, as well as the California Arbitration Act (CAA),3provide a basic framework in which parties can enter into enforceable contacts requiring an alternative dispute resolution forum in which traditional processes are streamlined, reduced, or eliminated—and the finality of outcomes is assured.4

However, adapting those original tenets into contemporary employment disputes involving unwaivable statutory rights has been a struggle. One example has been the push-pull dynamic between the desire for a streamlined, efficient process on the one hand, versus the need for adequate discovery on the other. This dynamic is magnified in employment arbitrations, which can present an imbalance in access to information and witnesses.5

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