How Can I Have Binding Arbitration Set Aside?

Full Question:

I am suing my divorce attorneys. I signed an agreement with the retainer stating that I would only do arbitration binding. Since this was a catastrophic, multi million dollar divorce which left me in the street since it was a six year divorce with only six court appearances (my husband controlled all finances) this is gross negligence, and I do not want to do binding arbitration. I have filed in pro per in a civil malpractice suit against them. They will sign a motion to compel me to arbitrate. Is there a chance I can still try for the court system instead, because I can get a fee waiver in the court systems, and have no money for arbitration? Question to my husband filed bk and my reg atty fees must go to his estate, can malpractice attorney fees since it is part of the divorce also go to his bk? The first question I asked is the most important. About the first question, if i go in front of the judge to ask for jury and not arbitration what are the positive things, but what could possible happen, sanction? Thank you. I am also looking for an attorney to help me on contingency in this multi million dollar fiasco.
08/15/2009   |   Category: Arbitration and Me...   |   State: California   |   #18093

Answer:

Written arbitration agreements are generally valid, enforceable and irrevocable. In rare cases, a court may set aside an arbitration clause under contract law principles. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds. Lack of ability to pay to defend yourself in arbitration is not a reason accepted by the court for setting aside an arbitration clause.

When arbitration is binding, you have to use it and can't mediate or sue. Some companies also stipulate in their clauses that if a court sets aside the arbitration clause, you waive your right to a jury trial. That means you can go to court, but the dispute will have to be heard by a judge rather than a jury.

For further discussion, please see:

http://www.bankrate.com/brm/news/advice/20041117a1.asp

I'm unclear on your question regarding bankruptcy, and what you mean by malpractice attorney fees. If your question is whether fees you alleged are not earned due to malpractice are still considered attorney fees, the answer would be that it is a matter of determination for the arbitrator to decide whether the fees are owed or not.