Mediation & Arbitration Mediation and arbitration lawyers for California workers Signed an arbitration agreement? Headed to mediation? Your rights came with you.
For workers with a claim against an employer who have just heard the words “mediation” or “arbitration.” We represent workers at both, exclusively for workers.
Lea esta página en españolThe fine print
It was in the stack you signed on day one.
An arbitration agreement is often signed at hiring, between the tax form and the handbook. Here is a sample clause, line by line, with what California and federal law say about each part.
Illustration: a stack of hiring papers (an offer letter, a handbook acknowledgment, a tax form and a direct deposit form) fanned open, with a sample arbitration agreement pulled out in front.
Arbitration Agreement
Illustrative wording only, not taken from any real agreement- Line 1: Any dispute arising out of my employment will be resolved by final and binding arbitration before a neutral arbitrator, not by a judge or jury.
- Line 2: The arbitrator will apply the same law a court would and may award any relief available in court.
- Line 3: The Company will pay the arbitrator’s fees and all costs unique to arbitration.
- Line 4: Fees will be paid as invoiced by the arbitration provider.
- Line 5: This Agreement covers all claims to the fullest extent permitted by law.
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Line 1 · Who decides
A private arbitrator, instead of a judge or jury.
The arbitrator hears the evidence and decides. There is no ordinary appeal: a court can set an award aside only for narrow reasons.
Arbitration vs. mediation vs. court -
Line 2 · What rights survive
Your rights come with you.
Arbitration changes where your case is heard, not the laws that protect you. When arbitration is required for claims like discrimination, California requires every remedy a court could award.
California’s minimum protections -
Line 3 · Who pays
The employer pays the costs unique to arbitration.
When an employer requires arbitration, the arbitrator’s fees and the other costs that come only with arbitration are the employer’s to pay, not yours.
Who pays, and why -
Line 4 · The fee-payment rule
Late fees can cost the employer its right to arbitrate.
The employer generally must pay within 30 days of the due date. An employer that fails to pay without a valid excuse can lose the right to arbitrate, and you may be able to take the case to court.
How the fee rule works -
Line 5 · The federal exception
Sexual harassment and sexual assault: you can choose court.
If your claim arose on or after March 3, 2022, federal law lets you choose court even if you signed an arbitration agreement before the dispute. A judge decides whether the law applies.
The sexual harassment exception
This is a sample, not your agreement. The notes describe general California and federal rules. Whether your agreement can be enforced, and what it covers, depends on its exact wording and your facts. We review it with you.
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Free Case ReviewIs this you?
You heard “mediation” or “arbitration,” and now you have questions.
Any of these is a good reason to talk to an employment lawyer before your next step. The consultation is free and virtual.
- You signed an arbitration agreement when you were hired, maybe without reading it.
- Your employer says your case has to go to arbitration.
- Your case is set for mediation and you want to know what happens that day.
- Your employer offered to mediate before you have filed anything.
- You received a demand for arbitration or a notice from an arbitration provider.
- You are not sure the agreement you signed can be enforced.
- You have a sexual harassment or sexual assault claim and an arbitration clause. See the federal exception
- Your employer has not paid the arbitration fees. See the fee rule
Or call (310) 853-3461. Bring the agreement if you have a copy.
The process in plain English
Mediation, arbitration and court, side by side.
Three different rooms. Mediation is a negotiation. Arbitration and court are where a case gets decided. The law that protects you is the same in all three.
Mediation
A guided negotiation. Nothing is decided unless you agree.
- Who decides
- No one decides for you. The mediator is neutral, helps both sides negotiate, and can’t make anyone settle.
- Is it binding?
- Only if both sides sign a settlement.
- Public or private?
- Private and confidential. What is said and written for it generally can’t be used as evidence later.
- Appeal
- Nothing to appeal. If it doesn’t settle, you keep your case and it continues in arbitration or court.
- Who pays
- The mediator’s fee is often paid by the employer or shared, depending on the agreement. We tell you up front.
Arbitration
A private trial before an arbitrator, usually because of an agreement signed at hiring.
- Who decides
- A private, neutral arbitrator, often a retired judge or experienced lawyer, instead of a judge or jury.
- Is it binding?
- Yes, generally final. Once a court confirms the award, it is enforced like a judgment.
- Public or private?
- Private. Hearings are not open to the public.
- Appeal
- No ordinary appeal. A court can set an award aside only for narrow reasons (Code Civ. Proc. § 1286.2).
- Who pays
- When the employer requires arbitration, it pays the arbitrator’s fees and the costs unique to arbitration.
Court
A lawsuit in Superior Court, with a judge and the right to a jury.
- Who decides
- A judge or jury.
- Is it binding?
- Yes, with the full right to appeal.
- Public or private?
- Public record.
- Appeal
- Yes, to the Court of Appeal.
- Who pays
- No arbitrator or mediator to pay. Ordinary court costs apply.
What happens on mediation day
- Before the day.We prepare a mediation brief for the mediator, often a retired judge or experienced employment lawyer, and walk you through the rules on confidentiality.
- Your own room.Usually a half or full day. After a short opening, if there is one, you sit with your lawyer in your own room, in person or by video.
- Offers back and forth.The mediator carries offers between the rooms. Settling is always your choice; no one can force you to accept an offer.
- A deal, or not.If both sides agree, the terms are written up and signed. If not, your case simply continues, and what was said there generally can’t be used as evidence.
What an arbitration looks like
- A demand starts it.A written demand is filed with the arbitration provider the agreement names, and the employer must pay the fees to get it started.
- A neutral arbitrator.Usually both sides have a say in who it is. The arbitrator must disclose possible conflicts.
- Discovery.Documents, written questions and depositions, so each side can prove its case.
- The hearing and the award.Witnesses testify and evidence is presented in a private hearing. The arbitrator issues a written decision.
The rules that protect you
An arbitration agreement does not erase your rights.
What mandatory employment arbitration must give you
Employers in California can generally require arbitration agreements. But for claims like discrimination, California courts enforce a mandatory agreement only if it is fair, with at least:
- a neutral arbitrator;
- enough discovery to prove your claims;
- a written decision a court can review;
- all the remedies you could get in court; and
- no arbitrator’s fees charged to you: the employer pays the costs that come only with arbitration.
The employer must pay arbitration fees on time
An employer that requires arbitration must pay the arbitration fees on time, generally within 30 days of the due date. An employer that fails to pay without a valid excuse can lose the right to arbitrate. The worker may then be able to take the case to court, or continue in arbitration with the employer paying related fees and costs, and the court must impose sanctions.
Late payment is not automatic forfeiture: courts now ask whether the nonpayment was willful, grossly negligent or fraudulent, and an honest mistake can be excused.
Sexual harassment and sexual assault cases can go to court
Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, if your claim arose on or after March 3, 2022, you can choose to bring a case that relates to sexual harassment or sexual assault in court, even if you signed an arbitration agreement or class-action waiver before the dispute. A judge, not an arbitrator, decides whether the law applies. It is your choice; you can still arbitrate if you prefer. Sexual harassment claims
PAGA claims and arbitration
If you signed an arbitration agreement, your own PAGA claim may have to go to arbitration, but claims for violations suffered by other employees can generally stay in court. An agreement can’t waive those claims altogether. The court may pause that part of the case while the arbitration goes forward. PAGA & class actions
Mediation is confidential
What is said, and what is written for the mediation, is confidential and generally can’t be used as evidence later, and that protection lasts after the mediation ends. The mediator can’t report to the judge or arbitrator about it. A signed settlement can still be enforced if it says it is binding. Before mediation, California requires your lawyer to explain these rules to you in writing, including that what you and your lawyer discuss about the mediation is also confidential, and ask you to sign an acknowledgment. We walk you through it.
How we prepare you
Ready for either room.
Arbitration is not always worse than court, and mediation is not always the right moment to settle. We tell you plainly what we think.
- We read what you signed. Whether the agreement is enforceable, what it covers, and whether a rule like the sexual harassment exception or the fee rule applies.
- We build the case the same way. Written discovery, depositions of managers and HR, documents and witnesses, whether the case is headed to an arbitrator or a jury.
- We prepare you for mediation day. What to expect, how we value your claims, and whether a settlement’s terms (release, confidentiality, tax treatment, references) protect you, so you decide with full information.
- We try it if it doesn’t settle. Opening, testimony, cross-examination and briefing before the arbitrator or in court.
What you can recover
The same remedies the law allows in court.
Moving a case to arbitration doesn’t shrink what the law allows. What you can recover depends on your claims and your facts, not on the room.
- Back pay and lost benefitsWages and benefits lost because of what happened, and front pay in some cases.
- Emotional distressWhere the claim allows it, such as discrimination, harassment and retaliation claims.
- Penalties and unpaid wagesWage-and-hour penalties and interest the Labor Code provides.
- Punitive damagesWhere the law allows them, on the required showing.
- Attorney’s fees and costsWhere the law allows, for example under FEHA and many wage laws.
What to gather
Pull out the papers you signed.
You don’t need everything to start. Keep only copies you lawfully have, and don’t take company files you weren’t given.
- The arbitration agreementOr any onboarding packet, app or e-signature record where it may be.
- Offer letterAnd any later agreements about pay or your role.
- Employee handbookAnd the acknowledgment page you signed.
- Demands and noticesA demand for arbitration, mediation notice, or letters from a provider.
- Pay recordsPay stubs, schedules and time records you have.
- Termination paperworkSeparation notice, final pay, any severance offer.
- MessagesTexts, emails and chats about what happened.
- A short timelineDates, names and what was said, written while you remember.
Once we take your case, you can upload these in your client app.
Results
Results in arbitration
Prior results do not guarantee a similar outcome.
- $1,100,000Arbitration AwardAssociational Disability Discrimination
- $1,000,000Arbitration AwardDisability Discrimination
Questions
Mediation and arbitration questions
Short answers to what workers ask us most. Your situation may be different; a free consultation is the way to know.
Can I sue my employer if I signed an arbitration agreement?
Often your case will go to arbitration instead of court, but the same laws and the same remedies still apply. And not every agreement is enforceable. California requires a mandatory employment arbitration to be fair: a neutral arbitrator, adequate discovery, a written decision, all the remedies a court could award, and the employer paying the costs unique to arbitration. Some claims, like sexual harassment claims that arose on or after March 3, 2022, can be taken to court if you choose. Bring the agreement to your free consultation and we’ll tell you where your case belongs.
What happens at a mediation in an employment case?
A neutral mediator, often a retired judge or experienced employment lawyer, meets with both sides, in person or by video, usually for a half or full day. After a short opening, each side typically waits in its own room while the mediator carries offers back and forth. The mediator can’t decide the case or make anyone settle. If both sides agree, the terms are written up and signed. If not, your case simply continues.
Is mediation confidential?
Yes. Under the California Evidence Code, what is said and written for a mediation is confidential and generally can’t be used as evidence later, and that protection continues after the mediation ends. A signed settlement can still be enforced if it says it is binding. Before mediation, your lawyer must explain these rules to you in writing, including that your own conversations with your lawyer about the mediation are confidential too, and ask you to sign an acknowledgment.
Who pays for arbitration?
When an employer requires arbitration, California law generally requires the employer to pay the arbitrator’s fees and the other costs that come only with arbitration. The employer must pay those fees on time, generally within 30 days of the due date. An employer that fails to pay without a valid excuse can lose the right to arbitrate, and the worker may be able to move the case to court.
Can I appeal an arbitration decision?
Usually not in the way you can appeal a court judgment. An arbitration award is generally final and binding. A court can set it aside only for narrow reasons listed in Code of Civil Procedure section 1286.2, such as fraud or corruption, serious arbitrator misconduct, an arbitrator who exceeded their authority or refused to hear important evidence, or an undisclosed conflict. That is why preparation before the hearing matters so much.
Do I need a lawyer for mediation?
You are not required to have one, but the employer will almost always bring a lawyer. A lawyer prepares a mediation brief, values your claims, knows when an offer is fair, and makes sure a settlement’s terms (confidentiality, release, tax treatment, references) protect you before you sign.
Can sexual harassment claims be forced into arbitration?
Not if you choose court. Under a federal law that took effect March 3, 2022, if your sexual harassment or sexual assault claim arose on or after that date, an arbitration agreement or class-action waiver signed before the dispute can’t be enforced against you if you elect to go to court. A judge, not an arbitrator, decides whether the law applies. You can still choose arbitration if you prefer.
Related practice areas
The claims we take to mediation and arbitration
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