MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 25
RULES OF EVIDENCE AT ARBITRATION
There is uncertainty about the application of the rules of evidence at arbitration. Some attorneys believe that arbitration should be an informal process while others think it should be more structured. The Arbitration Act does not resolve that conflict. Code of Civil Procedure section 1282.2, subd. (d) merely provides, in part, that “The parties to the arbitration are entitled to be heard, to present evidence and to cross-examine witnesses appearing at the hearing but rules of evidence and rules of judicial procedure need not be observed.” (Emphasis added.) As a starting point, therefore, the applicable arbitration agreement, if there is one, should govern the manner in which the arbitration is to be conducted. If there is neither an agreement nor a specified procedure, the parties should decide how they want the arbitration to be administered. If they cannot agree, arbitrators should advise the parties before the arbitration begins that the hearing, including the application of the rules of evidence, can be formal or informal; it is up to the individual parties to decide whether they wish to object to evidence and, if there are objections, that the arbitrators will rule on all objections as they are made.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, July 2016