A California appellate court determined that an arbitration award denying a realtor's claim for a real estate commission should be affirmed despite claims of improper conduct of the arbitrators.

In Chau v. Martin, No. G038926, 2008 WL 2461806 (Cal. Ct. App. June 19, 2008), Chau and Martin were commercial real estate brokers employed by Lee Industry. Chau signed an employment agreement that provided for arbitration of all disputes with other Lee employees.

After Martin sold a property, Chau claimed a share of the commission because she had previously represented the buyer in a search for a similar property. Chau demanded arbitration to resolve the issue. Following the arbitration proceedings, the arbitrators issued an award that found that Chau was not entitled to a share of the commission.

Chau filed a motion to vacate the arbitration award. Chau argued that the award should be vacated because the arbitrators did not sign it and Chau was denied the right to cross-examination. Martin submitted the declaration of one of the arbitrators, Roppe, in opposition to Chau's motion. The trial court dismissed Chau's motion.

On appeal, Chau argued that arbitrator Roppe was incompetent to testify about his conduct as an arbitrator and his declaration should have been excluded. The Court noted that an arbitrator is not competent to testify in a subsequent proceeding as to matters occurring during the arbitration proceeding. Thus, the Court determined that the Roppe declaration was improper and should not have been considered.

Chau also contended that the award must be vacated because it was not signed. The Court rejected this argument because it was undisputed that the award was prepared by and rendered by the arbitrators. Further, Chau was unable to explain how the missing signatures harmed her.

Next, Chau argued that the award should be set aside because she was denied the right to cross-examine Martin. The Court stated that the procedure to be followed in an arbitration proceeding is a matter of agreement. The instant arbitration agreement provided for arbitration according to Judicial Arbitration and Mediation Services, Inc. (JAMS), which allow both discovery and cross-examination to be waived.

The Court noted that it was undisputed that Chau agreed to the procedures. While perhaps a tactical mistake, the fact is that Chau did agree to forego the right to cross-examine opposing witnesses. The ability to cross-examine in arbitration may be waived, and the Court concluded it was in this case. Since no grounds to vacate the arbitration award were shown, the Court affirmed the trial court's dismissal of the vacatur motion.