Jury Trial Waiver: The Less-Traveled ADR Alternative

May 29, 2013Articles Law360

Ian Siminoff wrote the Law360 article "Jury Trial Waiver: The Less-Traveled ADR Alternative." While the full text can be found in the May 29, 2013, issue of Law360, a synopsis is noted below.

Employers seeking alternatives to jury trials have traditionally looked to arbitration agreements, however, arbitration is not the cure-all once envisioned. While matters are generally resolved quicker through arbitration and it allows employers to avoid unpredictable jury verdicts, there are significant costs of arbitration for the employer and they lack a meaningful appeal process.

Perhaps another option for employers is jury trial waivers, where a bench trial, rather than arbitration is the alternative.

In drafting a jury trial waiver, the following are some of the provisions that should be considered:

  • The language must be clear
  • It should be binding for both the employee and employer
  • It must be conspicuous
  • It should be signed by the employee

Finally, given the uncertainty surrounding jury trial waivers, to the extent that employers want to increase the odds they will not wind up in front of a jury, an option is to include both a jury trial waiver and an arbitration clause in the agreement.