A Lot of Choices
Welcome the New Arbitrators
The Trump administration’s attack on federal agencies like FMCS and the NLRB, as well as the DOGE “fork in the road” offer, could be playing out for years, but many seasoned labor relations professionals from those agencies have decided to take their fate into their own hands and chart a new career in labor arbitration. At the same time, experienced advocates who are ready to start the next phase of their career but not ready to retire have accurately assessed that the ranks of labor arbitrators need to be refreshed.
If you are in a position to select arbitrators, this is great news for you. If you’re in one of the two groups I described above, you might be a little nervous about all the competition. I want to offer advice to both audiences.
Selecting New Arbitrators
I recommend that you start by reading a post about this topic that I wrote in January 2024. Here’s what I said about judging new arbitrators:
Read their resume: The best indicator that a new arbitrator will be familiar with labor arbitration is that they have experience with collective bargaining, contract administration, and grievance handling. General employment law or human resources experience isn’t helpful unless it is in a unionized work environment.
Review their training: While it isn’t foolproof, if an arbitrator has completed the FMCS Becoming an Arbitrator training or an analogous National Academy of Arbitrators or state training, they should have a good grounding in the basics. The FMCS course includes a decision writing assignment (the “Nurse Kevin” case). You can request a copy of that work as a writing sample if the arbitrator doesn’t have any published decisions available. [NOTE: FMCS will no longer be providing this training, but the NAA has agreed to start offering Becoming A Labor Arbitrator, or BALA, soon].
Ask your colleagues: Although your colleagues may seem like a great source of information, take their feedback with a grain of salt since a losing party might be more negative than necessary. You might ask the colleague if you can read the award they received. What you want to know is: whether can they run a hearing, make clear evidentiary rulings, and manage the whole case efficiently. Is the arbitrator fair, and what does fair mean to your colleague? Do they express their opinions in a clear and readable way that your staff and/or membership will understand? Employers occasionally rely on a service called Simpsons, which writes reports on arbitrators. The union-side bar has a less formal approach to sharing information but is forthcoming with their opinions when asked. I believe that the Union Lawyers Alliance may have a listserv for its members where lawyers can find arbitrator recommendations.
[NEW] Along with your colleagues on “the other side,” host a “meet the arbitrator” event, inviting several new arbitrators to present on a panel answering hypothetical questions. These are best when hosted by bar associations and industry groups (like HR groups or labor councils) and should avoid specific pending cases. You quickly get a sense of whether someone who is starting an arbitration practice knows what they are talking about.
Still not sure you are ready to trust someone new? Some parties who have multiple grievances pending agree to hire a new arbitrator to mediate a set of grievances. The parties pick 3-6 grievances and do oral presentations to the arbitrator, who then tries to help settle the cases. If they are unable to settle the cases, the arbitrator might offer a non-binding advisory opinion. The upside to this approach for the parties is the exposure to the arbitrator’s approach to cases, possible settlement of grievances, and a non-binding third-party opinion that may influence the parties’ positions on the case. There isn’t a downside except for the expense of the arbitrator’s per diem expense. Still, six cases for the price of one isn’t a bad deal.
Ask other arbitrators. Many of the more established arbitrators are mentoring new people and can give you an assessment of the new arbitrator’s experience, qualifications, thought processes, and writing skills. They are often happy to promote newer folks who have a promising career ahead of them.
Standing Out in A Crowded Field
If you are a new arbitrator, you are probably dismayed to hear that there are a lot of other people entering the profession at the same time you are. A little competition is stressful, but truthfully, the parties are more likely to be choosing between you and an experienced arbitrator, rather than between two new folks. It’s better to think of other new arbitrators are your colleagues and a source of support and friendship than as competition. In the long run, good relationships with other arbitrators will get you much further.
Another truth: Not everyone is going to succeed at this. Not everyone is going to get selected. Not everyone is going to like being the arbitrator, either because they hate conducting the hearing or hate writing the decisions. I’ve seen very smart people decide they prefer mediation, or their life circumstances change and they need a more steady income. It’s not a judgment on you if you aren’t selected regularly, even though it feels like it is. Here are some tips for distinguishing yourself in a crowded field.
Network, network, network. Go to all the labor relations events you can: bar associations, LERA, conferences. Call everyone you know and ask to have coffee. Send thank you notes. Congratulate people on their promotions and career moves. Use LinkedIn. Keep your name in people’s minds.
Demonstrate your capabilities by writing articles or newsletters (I’m happy to guest publish if you are interested), speaking on panels, giving lectures, or guest teaching. Submit your decisions for publication (if the parties consent).
Think beyond labor arbitration by getting on mediation panels and non-labor arbitration panels, like FINRA and commercial arbitration panels. Look for civil service commission appointments and state agency opportunities. There’s a lot of work that goes by other names that still give you great experience and exposure.
Do a good job. It might sound silly but when the parties hire you for the first time, they want to see that you can run a hearing confidently and decisively, and issue a reasoned, fair decision.
Identify and work with a mentor. Experienced arbitrators are often happy to mentor new folks, even answering questions mid-hearing from new arbitrators. If you’re in a sticky situation, call your mentor!
You can read more of my advice (a LOT more) in The Labor Arbitration Career.
All in all, I think the influx of new arbitrators is a great sign that workplace dispute resolution is still a critical component of our economy, regardless of the shifting political winds.