Articles Posted in Hospitality Dispute Resolution

01 March 2024

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on Hospitality Dispute Resolution.

Why Judicial Reference is better than Arbitration for resolving
Hotel Management Agreements & Hotel Franchise Agreements.
Advanced analysis of Judicial Reference features.

Hotel Management Agreements & Franchise Agreements

by

Mark S. Adams, Hotel Dispute Lawyer
Partner & Senior Member
JMBM’s Global Hospitality Group®

In prior articles, we have looked at the options available to parties in resolving hotel industry disputes. See, Critical considerations for hospitality litigation, arbitration & alternate dispute resolution clauses in hotel contracts. See also, Is Judicial Reference better than Arbitration to resolve Hotel Contract disputes? The basics of Judicial Reference. 

The authority for Judicial Reference in California comes from two sources. The first is the California Constitution which provides for appointment of temporary judges. (See Cal. Const., Art. VI, § 21). The California Code of Civil Procedure also authorizes Judicial References. Specifically, it provides for the appointment of a Referee to hear all or part of a given case. (See Cal. Code Civ. Proc. §§ 638, 639.) Under § 638, the parties may agree to the appointment of a referee to determine “any or all of the issues” in the action [§ 638(a)], or to “ascertain a fact necessary to enable the court” to decide the case [§ 638(b)].

The purpose of this article is to make a more advanced analysis of the many desirable features of Judicial Reference.

Features of Judicial Reference.

Here are some of the important features of Judicial Reference:

• Judicial Reference permits an enforceable waiver of jury trial. In California and many other states, there is a strong public policy against waivers of the right to jury trial. Like arbitration, Judicial Reference is a well-established means to accomplish jury trial waiver in California.
• Efficiency and Timeliness: One of the primary advantages of the Reference procedure is its potential to resolve disputes more quickly than traditional court trials. The parties have more control over the scheduling of proceedings, which can lead to a swifter resolution. Generally, there is less risk of having to prepare for trial repeatedly because of continuances as a result of congested court dockets. While not inherently cheaper than arbitration, Judicial Reference can be more cost-effective in the long run due to the reduced risk of erroneous decisions and the potential for appeal. Compared to court trials, Judicial Reference offers a more streamlined and efficient process, minimizing disruption to hotel operations.
• Practical Expertise of the Referee: Parties have the opportunity to select a referee with expertise in the specific area relevant to their dispute. This allows for a more informed and specialized decision-maker, potentially leading to more accurate and equitable outcomes.
• Confidentiality: Unlike court trials that are generally open to the public, Reference proceedings can be more private and confidential. This can be appealing to parties who value the protection of sensitive hotel information, such as guest data and hotel operations. And unlike confidential arbitration, Judicial Reference proceedings could be made public, deterring frivolous claims, and promoting transparency.
• Appellate Review: Decisions made through the Reference procedure have opportunities for appellate review. This is a major advantage over arbitrations, which have very limited rights to appeal. Imagine a scenario where an arbitrator makes a decision contrary to law or evidence, potentially costing your hotel millions. In arbitration, your options are severely limited, with appeals rarely granted. Judicial Reference, however, provides a safety net of appeal rights, allowing you to challenge erroneous decisions in court and seek justice. This safeguard is invaluable for protecting your investments and ensuring a fair outcome. Unfortunately, arbitration’s “finality” often comes at the expense of justice. Consider the case of Vail Resorts Management Co. v. Rizzuto, where an arbitrator awarded a mere $150,000 in a $20 million breach of contract claim, despite overwhelming evidence in favor of the plaintiff. This decision, unappealable due to the arbitration clause, stands as a stark reminder of the risks associated with limited review.
• Comparison with Arbitration: Both arbitration and the Judicial Reference procedure offer alternatives to traditional court trials. Arbitration is typically less formal and more flexible. Arbitrators are often chosen by the parties, similar to referees, but the process may lack the level of formality associated with Reference proceedings. Both arbitration and Judicial References offer other avenues for waiving jury trials, albeit with distinct characteristics. Compared to Judicial Reference, arbitration is binding, meaning the arbitrator’s decision is final and cannot be appealed on factual issues. While offering finality and potentially faster resolution, arbitration raises concerns about neutrality and limited Judicial review. Unlike referees, arbitrators are not bound by strict rules of evidence and procedure, potentially raising concerns about fairness and transparency. Additionally, challenging an arbitrator’s decision is significantly more difficult than appealing a court ruling. Judicial Reference provides greater procedural oversight and potential flexibility due to the non-binding nature of the referee’s decision, which will become binding following court confirmation. However, Judicial Reference lacks the finality and expediency of arbitration. Conversely, arbitration offers finality but sacrifices judicial review and raises concerns about bias.
• Due Process and Discovery: Arbitration often restricts the ability to present crucial evidence because of limited discovery and unpredictable rules of evidence. This can leave you vulnerable to incomplete information and potentially unfair outcomes. Judicial Reference, on the other hand, adheres to established rules of evidence and discovery, ensuring a greater level of due process and a more thorough examination of the facts. This is critical when protecting your interests in high-value disputes. Extensive discovery provides deeper evidence but can be time-consuming and expensive. Limited discovery expedites the process but might restrict your ability to fully present your case. Similarly, broader appeal rights offer recourse against unfair outcomes but can lead to protracted legal battles and further costs.
• California-Specific: Judicial Reference is only available in California unless both parties agree to its application under another state’s law, which might face enforceability challenges. In key hospitality markets, such as Texas, Florida, New Jersey, New York, and DC, none has a Judicial Reference procedure at all, let alone one like California’s procedure. The same is believed true for all of the other states in the US, as well.
• Cost: Similar to arbitration, the costs of a Judicial Reference can be significant, especially with complex disputes and experienced referees.
• Judicial Expertise of the Referee: Unlike arbitration, where decisions can be made by industry “mavens” but with limited legal knowledge, Judicial Reference brings in retired judges or legal experts. Their in-depth understanding of the law ensures rulings are based on evidence and precedent, not industry biases or “splitting the baby” compromises. This is crucial in complex hotel contracts, where nuanced interpretations can have profound financial and reputational consequences.
• Reliable enforceability: California’s Judicial Reference procedure does not violate California’s constitution. Sandoval v. Salazar (1922) 57 Cal.App. 756, 759 (Code Civ. Proc., § 638,-645, relating to trials by referees, is not violative of Const., art. VI, § 14, as the referee’s report may be accepted or rejected by the trial court which renders the judgment.) Although the decision of a judicial referee is generally enforceable like a court judgment, the enforceability of such agreements relies on factors like the complexity of the issues, the qualifications of the referee, and the fairness of the proceedings. Judicial References are generally upheld, but there is no guarantee of enforcement, and parties may still challenge the referee’s recommendation before a judge during the confirmation process.

CONTINUE READING →

27 February 2024

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on Hospitality Dispute Resolution.

The better way to resolve hotel contract disputes:
Judicial Reference or Arbitration?

Hotel Management Agreements & Franchise Agreements

by

Mark S. Adams, Hotel Dispute Lawyer
Partner & Senior Member
JMBM’s Global Hospitality Group®

Judicial Reference is a procedure similar in many ways to binding arbitration. For convenience, we may sometimes use the word “Reference” interchangeably with “Judicial Reference.”

The parties may agree to use this procedure before or after a dispute arises, and may specify various elements of the procedure such as the skills of a retired judge to serve as the referee. Like arbitration, Judicial Reference is effective (even in states like California) to waive jury trial and avoid the risk of runaway jury verdicts. A Judicial Reference comes with a procedural advantage that arbitration cannot match: the right to appeal. With a Reference, the parties retain the appellate rights that they forfeit when they opt for arbitration.

The current prevailing choice is arbitration.

The hotel industry has been an innovator in the use of alternative dispute resolution to resolve disputes arising out of significant hotel contracts such as hotel management agreements, hotel franchise agreements, joint ventures, and even financing arrangements. Overwhelmingly, the industry has opted for binding arbitration. Proponents of arbitration claim that, compared to traditional court trials, arbitration can be faster, more private, impose experience or other qualifications on the arbitrator, and avoid a jury trial (with the potential for runaway verdicts). Many experts believe that the compelling “advantage” is avoiding jury trials, but there may be a better way to accomplish these objectives. See, Critical considerations for hospitality litigation, arbitration & alternate dispute resolution clauses in hotel contracts.

Using the right dispute resolution tool for each type of dispute.

Arbitration may be a quick fix for resolving questions about budget overruns or minor operational hiccups. Its efficiency shines in low-stakes situations where swift resolution is paramount. However, when it comes to major contractual breaches, misinterpretations, or significant financial losses, Judicial Reference emerges as the clear best choice. The stakes in hotel contracts often demand a more robust and transparent solution – one that Judicial Reference demonstrably delivers. So let’s take a look at the details of Judicial Reference. CONTINUE READING →

17 January 2024

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on Hospitality Dispute Resolution.

Critical considerations for hospitality litigation, arbitration &
alternate dispute resolution clauses in hotel contracts

Hotel Management Agreements & Franchise Agreements

by

Mark S. Adams, Hotel Dispute Lawyer
Partner & Senior Member
JMBM’s Global Hospitality Group®

Mark S. Adams is an experienced trial lawyer, partner, and senior member of JMBM’s Global Hospitality Group®. In his more than 14 years with the Firm, Mark has created an international reputation as a Hotel Dispute Lawyer, handling litigation, arbitration, jury trials, and alternate dispute resolution in hundreds of matters affecting hotels, resorts, restaurants, and other hospitality properties. But not every matter should, or does, end up in litigation. Mark also provides pre-litigation strategic advice to avoid litigation and optimize a client’s position for settlement where possible.

What is the difference between “Litigation” and “Dispute Resolution”?

In many circles, the term “litigation” refers to the process that starts with the filing of a lawsuit in the traditional court system and includes all that follows until a final resolution. This more restrictive definition does not include arbitration or other alternative dispute mechanisms.

In other circles, however, “litigation” has a much broader meaning which includes the first definition of court litigation. This second meaning includes all methods of dispute resolution and refers to the entire progression of a dispute from reviewing and advising on pre-contract drafting, through the first disagreement, preparing correspondence, and on to negotiations to amicably resolve issues. It also encompasses all related matters in the dispute from notice of default, strategic positioning for a lawsuit or other action, and engaging in dispute resolution by any procedure such as filing and then prosecuting or defending a lawsuit, arbitration, mediation, or judicial reference (see below).

We generally use “litigation” in the second, broadest meaning of all stages of any dispute and any type of dispute resolution process. In this article, we will specifically name a particular means of dispute resolution where it may provide greater clarity.

Dispute arbitration compared to court trials and judicial reference

Binding arbitration is the dispute resolution mechanism embodied in most hospitality contracts, particularly hotel management or operating agreements and hotel franchise agreements. The choice of binding arbitration may have profound effects on the process and outcome of the dispute. As a result, many parties opt out of arbitration, or attempt to opt out of it. The Pros and Cons of arbitration vs. court trials are summarized below:

Arbitration:

Pros:  Almost always a faster resolution, typically private and confidential proceedings, parties can choose arbitrators, avoids jury trials of complex business issues and the potential for runaway verdicts. Arbitration is favored by strong public policy behind the Federal Arbitration Act and most state arbitration statutes.

Cons:  Extremely limited appeal options, if any, less formal discovery, potential for biased arbitrators (e.g., frequent flyer customers), binding decisions, now offers little savings in cost – can be outrageously expensive. Without mutual agreement, a dispute can only be forced into arbitration when the parties have signed a binding arbitration agreement before the dispute arises, or, the parties sign such an agreement for the particular dispute after it arises.

Court Trials:

 Pros: Adherence to legal procedures, comprehensive discovery, public record, right to appeal.

 Cons: Lengthy process, high discovery costs, less control over timing, potential for complex rules and delays, jury trial waivers may not be enforceable in many jurisdictions (such as California) except when arbitration or judicial reference is provided.

Judicial Reference (or “Reference”) – A better alternative dispute resolution process with the best of both arbitration and court litigation?

Although it is less well known than arbitration or traditional court litigation, in states like California, there is another process that offers the best of both worlds. Many of our most experienced litigation attorneys believe that judicial reference deserves thoughtful consideration for hospitality contractual provisions for the dispute resolution process. CONTINUE READING →