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Arbitration Opt-Out Form & Keeping Adequate Court Records

Oct 6, 2023

Thanks for clicking through. This is an interesting case involving an opt-out form delivered to the employer by a former employee, almost a year after her last day of employment.

What was your initial reaction as to which way the Court of Appeal decided?

  1. It affirmed the trial court’s decision to deny the motion to compel arbitration, or
  2. It reversed the trial court and ordered the matter to arbitration.

The answer, as you have gathered by now, is, in fact, neither.  Instead, the Court of Appeal affirmed the trial court because defendant elected to proceed with the appeal without a reporter’s transcript. Because the minute order issued by trial court did not provide an explanation of the factual or legal basis for its decision, and there was no reporter’s transcript of the proceedings, or “a suitable substitute,” the Court of Appeal concluded that the trial court’s decision was to be upheld. In the absence of an adequate record establishing otherwise, an order or judgment is therefore presumed correct.

I am not sure how many lawyers would have noticed that the opt-out form did not state a clear deadline.  Even if that was noticed, how many would have concluded (albeit incorrectly) that there was an implied deadline that ended when the employment ended.  The plaintiff’s lawyer got it right. However, what sank the ship was the omittance of a reporter’s transcript in defendant’s appeal. It reminds us of the importance of attention to detail, and, perhaps more important, knowing how to preserve a trial court record at all stages of a litigation.

When preparing for a mediation, I like to get a good grasp of the details.  I can only do that if the attorneys provide them to me in briefs. I would much rather receive detailed timelines of events and documentary exhibits than a boiler plate discussion.  Provide detail about the facts of your case, and help the mediator focus on the most important issues from your client’s perspective.  

Do you have a case that you’d like to settle this year?  Dates are always opening up on my calendar, especially as scheduled arbitration hearings go off calendar almost every month.  Check my online calendar for my availability and schedule a mediation in real time. My case manager, Tammie Bellerose, will promptly be in touch with confirmation details.

Ready to book a mediation?