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Is arbitration truly pro-defendant? Can a plaintiff be more confident in a victory in civil court?

Los Angeles, CA |
Filed under: Lawsuits and disputes

It seems that most defendants mainly prefer arbitration to avoid class actions. However, if a case is not going to be a class action either way (it would just be me suing for employment discrimination), should I expect that a court case would be more advantageous than an arbitration? Is it a close question or is one option substantially superior for plaintiffs?

Attorney Answers 3


If there is any way to avoid an arbitration, I do so. Arbitrators are retired judges or attorneys who need to earn a living. Almost no arbitrators who want repeat business will award substantial punitive damages to a plaintiff, and many are reluctant to become known as a neutral willing to award large emotional distress damages. Once an arbitrator goes on the defense bulletin boards as one willing to give such awards, it is very difficult to get a defendant to agree to him or her in the future.

There is a reason why employers put arbitration clauses in their employment agreements and then fight so hard to keep the dispute in the arbitration arena. There are good and valuable reasons they are willing to spend thousands of dollars to fight about that issue. Go to school on that fact.

By avoiding arbitration you still have the right to elect the matter to be heard by the judge as opposed to a jury, including up to the beginning of trial. If you are forced into arbitration, the uncertainty and fear engendered by their unpredictable nature will be lost at the outset. Defendants desire predictability. Why give them the comfort they so fervently desire?

There is a reason why as a plaintiff's employment attorney I will spend many hours opposing a motion to compel arbitration. It can be worth 5 to 6 figures in ultimate settlement value, and certainly potential verdict value.

You should not be doing this alone. It is important that you locate and consult with an experienced employment law attorney to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Thanks so much for this significantly insightful answer.


It's hard to generalize. Often plaintiffs favor jury trial if they feel the case has substantial verdict value, or has favorable jury appeal (sympathetic plaintiff, emotional appeal, etc.) But there are plenty of instances where plaintiffs have opted for arbitration or bench trial over a jury trial. In a jury trial you are leaving the decision to 12 lay persons. Some people feel that lay persons may be more receptive to emotional factors or be more swayed by sympathy. This is not always true, however. Arbitrations are usually decided by a single arbitrator or perhaps three arbitrators. Arbitrators are usually retired judges or experienced attorneys. Plaintiff should not necessarily be more confident of a victory in a jury trial.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

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Impossible to generalize. For a plaintiff, arbitration is considerably less expensive then court and can therefore be a better option.

This post is for information purposes only and does not constitute legal advice, nor does it establish an attorney client relationship with Mr. Cassara.

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