By Mark S. Adams

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 details of Judicial Reference.

The California model of Judicial Reference.

Recognizing the need for alternative dispute resolution in complex matters, California established the Judicial Reference procedure (California Code of Civil Procedure sections 638 through 654.2). This procedure allows parties to agree to have a Referee, typically a retired judge, or an experienced attorney, to hear evidence and make legal rulings 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 procedure closely mirrors a traditional trial, with the main distinction being the private and more confidential nature of the proceedings, and the ability to confidently waive jury trial.

At the conclusion of the procedure, the Referee issues a non-binding decision, which is then submitted to the court to review and confirm into a judgment subject to appeal. The decision is invariably confirmed by the court. The Judicial Reference procedure is not necessarily limited to California disputes. Parties in other states could agree by contract to mimic the California Judicial Reference to resolve their disputes.

Parties can choose to use the Reference procedure for various types of cases, including disputes regarding hotel management agreements and franchise agreements. The flexibility and informality of this process can be particularly advantageous for parties seeking a more expeditious and tailored resolution to their conflicts.

Judicial Reference offers all the basic advantages of arbitration, plus more

Judicial Reference offers all the basic advantages of arbitration’s faster timeline, confidential proceedings, selection of decision-maker, and avoidance of jury trials. But it fixes the biggest drawback of arbitration for important cases – the lack of appeal rights, even for decisions contrary to law, unjustified by the evidence, or based upon mistake.

Judicial Reference is also more likely to avoid two other problems endemic with arbitration: (1) arbitrators are frequently observed to “split the baby” rather than dispense the justice deserved, and (2) arbitrators come from a limited pool of hospitality industry figures who hope to be hired again in the next hotel industry dispute where the hotel industry participant will have to approve the arbitrator.

In the next article on Judicial Reference, we will delve more deeply into the advantages and features of the procedure.