Assigning the Burden of Proof in Contractual Jury Waiver Challenges: How Valuable Is Your Right to a Jury Trial?


Employers have long used arbitration agreements to manage the risk associated with the resolution of employment disputes. But as dissatisfaction with arbitration increases, employers are fundamentally changing their approach to dispute resolution by incorporating jury waivers into their employment agreements as an alternative. These jury waivers are an attractive compromise between arbitration and jury trials because they offer the full procedural protections of the public judicial system at a considerably lower cost than a comparable jury trial. Some courts have invalidated such jury waivers, however, making the enforcement of such waivers uncertain. In order for pre-dispute jury waivers to be used effectively, this uncertainty must be addressed and resolved. In this Article, Chester Chuang surveys the law surrounding the use of pre-dispute jury waivers in employment agreements and traces the inconsistent judicial treatment of such waivers to a disagreement over which party bears the burden of proof when such waivers are challenged in court. Chuang argues that strong public policy considerations support placing the burden of proof on the party seeking to enforce the waiver. Chuang concludes that resolving the burden of proof question in this way will allow such waivers to be used to mitigate risk when appropriate.


Dispute Resolution and Arbitration | Labor and Employment Law | Law

Date of this Version

March 2006