The California Constitution (Art. I, § 16) guarantees an "inviolate" right to a "trial by jury". In a civil case, the right to a jury may be waived by "the consent of the parties expressed as prescribed by statute". Id. The California legislature has prescribed five different ways in which a jury trial in a civil case may be waived:
- failing to appear at the trial;
- written consent filed with the clerk or judge;
- oral consent, in open court, entered in the minutes;
- failing to announce, at the appropriate time, that a jury trial is required; or
- failing to deposit jury fees.
Cal. Code Civ. Proc. § 631.
In Grafton Partners v. Superior Court, 36 Cal. 4th 944 (2005), the California Supreme Court held under the Constitution the legislature must prescribe the methods of waiving a jury trial and that Section 631 does not authorize pre-dispute waiver of that right.
In an opinion filed yesterday, the Fourth District Court of Appeal considered, among other issues, whether a settlement agreement providing for binding mediation is unconstitutional. Bowers v. Raymond J. Lucia Cos., Inc., Cal. Ct. Appeal Case No. D05933 (May 30, 2012). In an opinion by Administrative Presiding Justice Judith McConnell, the court concluded that "binding mediation is not a constitutional or statutorily prohibited means of waiving jury trial rights, where, as here, the parties have agreed to settle their dispute in a nonjudicial forum." The court distinguished Grafton on the basis that it involved the validity of a pre-dispute waiver in a judicial forum while this case involved post-dispute waiver and an agreement to resolve claims in a nonjudicial forum.