For non-consumer arbitrations, JW offers its own set of Commercial Arbitration Rules, designed to promote a just, speedy, economical, and enforceable resolution of disputes through arbitration.
In those rare circumstances where parties to a non-consumer arbitration need to retain the ability to appeal an award, JW offers Commercial Appellate Arbitration Rules.
Developed for partially virtual ("hybrid") or fully virtual sessions of an arbitration proceeding, these guidelines are intended to assist Arbitrator(s) and Parties by supplementing procedural terms that otherwise govern the conduct of an arbitration proceeding.
Judicate West Sample Commercial Contract Clauses
For non-consumer contracts where the parties would like to specify JW as their alternative dispute resolution provider, sample clauses are provided in JW Commercial Rule 2.B. I n addition, suggested mediation-specific JW contract clauses are available on our Mediation Services Page under Additional Resources.
JUDICATE WEST ARBITRATION & PRIVATE JUDGING ADMINISTRATIVE PROCEDURES
- Unless otherwise required by law, the parties are free to agree to any preferred procedural rules to govern their matter, including state or federal procedural rules, or the rules of an ADR provider organization. The only constraints on such modifications are fundamental notions of procedural due process or mandatory provisions of applicable law.
- For non-consumer arbitrations (e.g., commercial arbitrations), Judicate West ("JW") offers its own set of Commercial Arbitration Rules ("JW Rules"). For non-consumer arbitrations where the parties do not agree, JW rules will apply. (See JW Rule 2.A.1.) For consumer arbitrations, to the extent the parties' arbitration clause does not otherwise specify particular procedural rules and the parties do not agree, JW will default to any rules specified by the California Arbitration Act, California Code of Civil Procedure ("CCP"), section 1280, et seq. (Please review California Civil Code § 1761 and CRC Ethics Standard 2(d), 2(e) for definitions of a "consumer" or "consumer arbitration.")
- Should the governing procedural rules fail to address an issue which arises during any phase of the proceeding, and to the extent not otherwise specified by contract, the parties agree to submit that issue to the Neutral, who will decide and determine the matter according to general principles of law and equity. This includes but is not limited to disputes regarding discovery, continuances, motions, fees, and evidentiary rules (offer and admissibility).
- For consumer arbitrations, JW will not force any consumers to have a matter involving them administered by JW. JW will only administer a consumer arbitration if all parties mutually consent or if specifically directed by a court order.
- Waiver and Interpretation of Rules: A party to an arbitration waives objection if it participates in a session with knowledge that there has not been compliance with a requirement or provision of applicable rules and has failed to submit a written objection. Before selection of a Neutral, JW reserves the right to interpret rules necessary to administer the matter. JW also reserves the right to interpret rules unrelated to a Neutral's powers or duties.
- Fees: JW's agreement to render services is with the participating firms or claims professionals, not the parties they represent. Paying firms are responsible for ensuring payment of fees. Per CCP § 1284.2, fees are shared on a pro rata basis, unless modified by mutual consent of the parties, law, court order, or ruling by the Neutral. Disputes regarding how to split fees will be handled by the Neutral, and JW retains the right to collect an initial retainer from one or both parties until any fee dispute is resolved. In a consumer arbitration, per CCP § 1284.3(b)(1), JW waives all administrative fees and costs charged to or assessed upon an indigent consumer party. Please note that this does not include Arbitrator fees. Please contact JW at the outset of your case for an indigent consumer fee waiver form. JW's administrative fees are applicable in private judging matters as well as arbitrations, and JW may refuse to administer a private judging matter if administrative fees are not paid. Please see the JW Arbitration and Private Judging Fee Schedule at judicatewest.com for more information regarding filing fees, case management fees, and our Neutrals' fees for service.
- Representation by Counsel: JW reserves the right to decline administration of any matter, or cease administration of any matter, where one or more parties are not represented by counsel. Many JW Neutrals choose only to conduct arbitrations where all parties are represented by counsel. If for any reason any party to an arbitration ceases to be represented by counsel, the Arbitrator, in his or her sole discretion, may suspend or terminate the arbitration unless doing so would unduly prejudice a party, or unless the Arbitrator determines that in the interest of justice and equity the arbitration should proceed. (See e.g., JW Rule 4.A.) Counsel and self-represented parties must at all times conduct themselves civilly and professionally.
- Counsel for each party will be required to sign an Agreement for Judicate West Arbitration or Private Judging Services ("JW Service Agreement") before services will be initiated. Counsel will also be asked to pay a refundable retainer as provided by JW's Arbitration and Private Judging Fee Schedule before a Neutral commences work on a matter. JW and its Neutrals reserve the right to withhold Neutral's services, rulings, or awards until all fees, retainers, and JW Service Agreements are received
- To initiate an arbitration, all parties may mutually elect to arbitrate some or all of the issues in their dispute by submitting a written agreement to arbitrate to JW. (See e.g., JW Rule 4.B.) When one party unilaterally commences arbitration (the "Claimant"), that party will serve a written Notice of Intent to Arbitrate ("NIA") on the other party(ies) (the "Respondent(s)"). To initiate the arbitration process at JW in these circumstances, the Claimant must submit a copy of the NIA to JW together with payment of the applicable filing fees and proof of service on all named parties. It is the Claimant's responsibility to properly identify and serve all Respondent(s), and absent a specific court order, JW generally will not proceed with administering an arbitration unless the named Respondent(s) participate in the process, including by responding to correspondence from JW staff regarding the matter. Respondent(s) may submit a response to the NIA to JW and serve it on all parties within 30 days of receipt of the NIA. Choosing not to submit a response to the NIA is considered a general denial of the claims made in the NIA
- For private judging matters, including Referee and Special Master assignments, JW strongly recommends that the parties contact JW as early as possible to confirm that their desired Neutral is available to serve. The parties are responsible for ensuring that all documents required by law are prepared and filed with the appropriate court.
- If the parties have not agreed to a Neutral, JW will assist them in a Neutral selection process. The proceeding will be initiated with an assigned Neutral pursuant to any contract, court order, and/or governing rules after all parties have: signed and returned the JW Services Agreements, received and reviewed any applicable disclosures for the appointed Neutral, and paid any applicable JW fees and refundable retainers.
- Both JW and its Neutrals depend on your providing the names (including correct spellings) of all law firms, attorneys, parties, subsidiaries, witnesses, experts, divisions, affiliates, partners, and joint venturers involved in the litigation. These names should be provided to us as soon as possible. Names of all attorneys working or possibly working on the file are needed at the outset of the matter, so that JW's and the Neutral's files can be reviewed at the individual level as well as the firm level in preparing disclosures.
- In arbitration, if the parties do not respond to JW within 15 days of receiving their Arbitrator's disclosures, their rights to disqualify an Arbitrator, including under CCP §§ 1281.91 and 1297.125, are deemed waived. If the parties seek a session with their Arbitrator within less than 15 days of receiving disclosures, they will be required to sign a waiver acknowledging that they are seeking the session before the statutory disqualification deadline has passed. For private judging matters with disclosure requirements, please refer to applicable law relating to any request for Neutral disqualification.
- Filings: All briefs or submissions should be submitted via MyJW or sent to email@example.com with a copy to your Neutral's Case Manager. To ensure timely delivery to your Neutral, any filings submitted within two days of a session should be emailed directly to your Neutral's Case Manager. Providing documents only to JW does not result in their service on other parties in your matter. You are independently responsible for ensuring any necessary service of documents before submitting a filing to your Neutral. Your Neutral may exercise discretion in deciding whether to accept late filings or declining to consider filings that do not include necessary proofs of service. JW's document retention policy for documents received from parties is available here.
- Rulings & Award: Materials prepared by JW or your Neutral, including your Neutral's rulings and award, are served by email to the applicable email addresses provided to us and the service requirements of CCP § 1283.6 are deemed waived. If you wish to receive hard copies of documents, please inform us in writing. JW retains the right to withhold any decision from all parties until all fees have been paid in full.
- Court filings of briefs, decisions, stipulations, and any related documents, including for example any filing requirements applicable for briefs submitted to judicial references under CCP §§ 638 and 639, are the responsibility of the parties. When JW serves the parties with a Neutral's ruling requiring filing with the court, the parties are expected to timely file the ruling.
- Cancelation/Continuance: Hearings cannot be continued by a party unilaterally. If the parties do not agree to continue a session, the party seeking the continuance must file a written request with the Neutral. Any cancelation/continuance fees must be agreed to with JW in accordance with its policies outlined in its Arbitration and Private Judging Fee Schedule. If agreement cannot be reached, any cancelation/continuance fees will initially be split between the parties and the Neutral will make a final ruling regarding the appropriate allocation of fees between the parties at the appropriate time, typically upon serving of the final ruling/award.
- Failure to Perform: Though it is extremely rare that a Neutral has an emergency or falls ill and cannot serve, JW cannot guarantee hearing dates nor be held liable for any loss incurred in the event a case may be canceled or postponed due to a Neutral's emergency unavailability
- Default: If a party or representative fails to appear at a session after confirming participation and without obtaining a continuance, the Neutral, at his/her discretion, may deem the party to be in default for that session and take evidence necessary to reach a determination on a dispute or render an award.
- Court Reporters / Transcripts: JW does not offer transcription services, and a party who wishes to have a certified record of a proceeding is responsible for hiring a court reporter. The requesting party must make arrangements after notifying the Neutral and all other parties at least 7 days prior to the session. The parties are not permitted to record proceedings without the express permission of the Neutral. Any requests for a recording of a virtual proceeding (e.g., a Zoom recording) must be made to both JW and the Neutral at least 7 days in advance of a session, and it is the parties' responsibility to ensure the virtual proceeding is actually recorded as desired by confirming with the Neutral. JW is not responsible for any failure to record, and recommends that a party obtain a certified transcript by hiring a court reporter if it intends to rely on specific statements made during the proceedings as evidence.
Submitting Your Arbitration to JW
Please note that to initiate any ADR services at Judicate West, counsel for each party will first be required to sign an Agreement for Judicate West Services. In addition, counsel for the paying party(ies) will be asked to pay a refundable retainer. (For more information about JW's Services Agreement and billing practices, please visit our FAQ webpage).
To initiate an arbitration, all parties may mutually elect to arbitrate some or all of the issues in their dispute by submitting a written agreement to arbitrate to JW. For matters where the parties mutually agree to arbitrate (or have otherwise been ordered to arbitrate by a court), click here to make an inquiry online.
Alternatively, a party may unilaterally seek to commence arbitration by serving a written Notice of Intent to Arbitrate ("NIA") on all other party(ies) and submitting a copy to JW, along with all necessary filing fees.
If the parties have not agreed to an Arbitrator, JW can assist in an Arbitrator selection process. As one option for expeditious neutral selection, JW recommends letting us assist you through a strike and rank process.
To provide you with qualified arbitrators, we first send all counsel a short questionnaire to identify desired criteria and unique case needs. Having received counsel's feedback and performed a case history search, we narrow our list of arbitrators and generate a list from the remaining pool. The list is sent to all parties, along with instructions regarding the number of strikes, the ranking procedure, and the timeline for confidentially returning selections.
After your selections have been confidentially submitted to us, we select the neutral with the highest combined rank (i.e., the lowest combined rank number) to serve as your arbitrator.
Please note that to initiate any ADR services at Judicate West, counsel for each party will first be required to sign an Agreement for Judicate West Services. In addition, counsel for the paying party(ies) will be asked to pay a refundable retainer. (For more information about JW's Services Agreement and billing practices, please visit our FAQ webpage)
For private judging matters, including Referee and Special Master assignments, JW strongly recommends that the parties contact JW as early as possible to confirm that their desired Neutral is available to serve. The parties are responsible for ensuring that all documents required by law are prepared and filed with the appropriate court throughout the course of the private judging assignment, including at the initiation of the matter. Some brief information is provided below regarding initiating certain types of private judging assignments that we commonly see at JW.
California Judicial References (General Referees, Special Referees, and Discovery Referees)
In addition to Cal. Code Civ. Proc. 638 through 645.2, please review the applicable California Rules of Court for the type of judicial reference appointment sought, including C.R.C. Rules 3.900 through 3.907 (for Section 638 References) or C.R.C. Rules 3.920 through 3.926 (for Section 639 References). These provisions include information regarding what must be included in an order appointing a California judicial reference, as well as other requirements for the conduct of proceedings before them.
The California Courts have made two fillable forms available for parties to use in seeking appointment of a judicial reference:
ADR-109 Form (Stipulation/Motion for Order Appointing Referee)
ADR-110 Form (Order Appointing Referee)
California Temporary Judges
The applicable California Rules of Court, including C.R.C. Rules 2.830 through 2.835 ("Temporary Judges Requested by the Parties") include information regarding the appointment and requirements of a temporary judge sought by the parties under article VI, section 21 of the California Constitution.
A fillable form Stipulation and Order for Appointment of Privately Compensated Temporary Judge with Oath of Office (D-008 Form) is available for San Diego Superior Court Family Law Division matters.
Federal Judicial References (Special Masters)
Please review Federal Rule of Civil Procedure 53(b) for more information regarding what must be included in an Order Appointing Special Master in federal court.
In addition to JW's full roster of Private Judging Neutrals, you might consider reviewing the Neutrals in JW's Federal Practice Group to see if those of them available and accepting such assignments might be a good fit for Special Master in your case.
Arbitration Subpoena/Summons Templates
If you seek an arbitration subpoena signed by your Arbitrator(s), JW offers the following witness subpoena/summons templates directing appearance at an arbitration hearing itself. To the extent you seek your Arbitrator(s)'s consideration of a pre-hearing discovery subpoena, please confer with all parties and your Arbitrator(s) regarding whether such a subpoena can be issued in your case before preparing a proposed subpoena as desired for your Arbitrator(s)'s consideration.
(Please Note that in providing these subpoena/summons templates, JW does not offer legal advice or make any assurances about the enforceability of any subpoena or summons issued by your Arbitrator(s).)
Instructions for Seeking Arbitrator Review of Your Proposed Subpoena/Summons
After preparing the appropriate proposed subpoena/summons for you matter, consider meeting and conferring with counsel for all other parties in your arbitration to determine whether there are any objections to the issuance of your proposed subpoena/summons.
Submit the completed form subpoena/summons to your arbitrator(s) with a copy to the arbitrator(s)'s Case Manager and all counsel of record in the matter. Your email should state the results of the parties' meet and confer efforts, if any, and clearly state your request for the arbitrator to sign the completed form.
If no notice of objections to the subpoena/summons are emailed to the arbitrator(s) and all counsel within 3 business days of the initial submission to the arbitrator(s), the arbitrator(s) will promptly review the subpoena/summons and determine whether it should be signed.
Counsel are responsible for service of the subpoena/summons after it is signed by the arbitrator and returned to them by the arbitrator's Case Manager.
If you have other questions regarding the issuance of subpoenas or summonses in your arbitration, please contact your Case Manager.