Weighing the advantages of judicial reference

At a time when the California court system, already backlogged before the hiatus of in-court trials last year, is still facing challenges in balancing video-conferenced and in-person proceedings, less cumbersome and quicker alternatives may start to look more advantageous. Litigants who are willing to waive a jury but who do not wish to risk the outcome of an arbitration might want to consider judicial reference.

Under the California Code, CCP § 638, the appointment of a neutral as a judicial reference referee allows parties to disputes of all kinds the advantages of flexible and speedy proceedings with full procedural rights.

Sometimes called a special master or private judge, the judicial reference referee follows the established rules of evidence, discovery and right to appeal, and their decision carries the same force of law as a trial judge.

Distinction from an arbitrator

Just as with arbitration, judicial reference is often written into contracts either as a consensual referee or as a specific remedy in resolving disputes. Both methods also require both parties to agree to the neutral who will hear both sides and render a decision.

But while arbitration is private, judicial reference is guided by all the rules and proceedings of the courts. And while the outcome of binding arbitration is final, in judicial reference a decision may be appealed in the same way it would be in court.

The primary advantages of judicial reference

For disputes that arise out of mergers and acquisitions, contractual or trade disagreements, business claims or construction cases, resolving conflicts is time-sensitive and often urgent. A sped-up timeline that keeps cases out of the court system in order to facilitate dispute resolution is also cost-effective.

As in arbitration, the parties to a dispute may choose a judicial referee who will have a familiarity with the industry or subject matter pertaining to the case, and who also will have more time to review arguments.

Although judicial reference is often a remedy for dispute resolution specified by contract, parties in pretrial proceedings may decide at any point in litigation to change to judicial reference if both parties agree to this option. If they cannot settle on a referee, both parties may submit their choice to the court, and where one will be chosen for them.

Finding a judicial referee with extensive trial background in civil, business and construction litigation serving Irvine and Southern California can make a great deal of difference to businesses seeking timely and effective dispute resolutions.


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