After the Award

What to do when you lose (or win)

Before I launch into today’s topic, I wanted to share some information about “Navigating the NAA Application Process,” a presentation that I will be presenting on behalf of the Northern California regional National Academy of Arbitrators on January 8, 2025, 4:00 pm PST/7:00 pm PST. I will present the nuts and bolts of the application process for current or soon-to-be labor arbitrators who are considering applying to the NAA. Registration is required, but I will record it if you cannot attend on that date. REGISTER HERE.

Okay, on to the main event.

Here’s what I remember from being an advocate: an arbitration award would arrive in my mailbox and my heart would sink before I even read it. I always assumed the worst, of course, and like most folks, I would turn to the last page to see the decision before I even read the award. When I won, I would hoot loud enough for the lawyer in the next office to hear me. When I lost, I would go back to the beginning to read the award to find out why my stunningly brilliant arguments hadn’t prevailed. If it was a win, I would call my client immediately; if it was a loss, I would fax them the award with a note to call me.

Once I had done this, I would pass the award along to the attorney in our office who managed the arbitration practice, and they might reach out to ask a few questions or let me know that they had started the process of confirming or (more rarely) vacating the award. Sometimes I would need to talk to the other side about implementing the remedy, and on rare occasions, re-open the record.

In most cases, once a “final and binding award” is issued, there is nothing further for the arbitrator to do, and they are considered functus officio, which means their job is over.

If there are loose ends, however, like the amount of backpay, the parties can invoke the arbitrator’s jurisdiction, if they reserved jurisdiction, within the time it was reserved in the award at hearing. For example, if the arbitrator says she’ll reserve jurisdiction for 30 days, the parties have 30 days to return to the arbitrator to resolve disputes over the remedy. Often one party will notify the arbitrator, with a copy to the other side, that they need assistance resolving the remedy.

Sometimes, the parties might want clarity on the language; neither party understands a term, or believes that there is a grammatical error which prevents them from implementing the award. The parties may jointly approach the arbitrator to seek clarification. If the parties don’t do that, and the jurisdiction runs out, the arbitrator is, again, functus officio.

When the case is functus officio, the arbitrator cannot do anything further in that case unless both parties agree, and the arbitrator agrees, to re-open jurisdiction. If someone does not agree, there will need to be a new grievance about interpreting the award.

Let’s say you now have your “final and binding award” that has a clear decision and remedy, but you are worried that the other side won’t fulfill their obligation under the award. Once avenue is to take the award to court and have it “confirmed.” The process for doing this varies by state and should be done in consultation with a lawyer. Once the award is confirmed, you can enlist the court’s assistance in enforcing it. I recall a case where the sheriff confiscated heavy equipment from an employer who failed to pay the backpay that had been ordered, for example.

But what if you were on the losing end and you want to have the award “vacated”? Again, this is process that is dictated by state or federal law. Be aware that the standard for vacating an arbitration award is quite high. The courts generally believe that if the parties availed themselves of the arbitration process, they’ve assumed that is the best place to resolve disputes. It is rare for an arbitration award to be vacated. The losing party will probably have to live with the consequences of the decision - at least until bargaining.

So is there any reason to reach out to the arbitrator after the award?

Assuming that the award is final and binding, the case is totally resolved, and the arbitrator is functus officio, you might be able to ask the arbitrator for feedback on your presentation. You can only do this if 1) the matter is final and 2) you have no other cases pending before that arbitrator. Even with those conditions, many arbitrators are unwilling to communicate with one party. However, your colleagues are likely to know which arbitrators are willing to provide feedback about your skills and it’s okay to reach out to ask, as long as you are clear that you would like to know how you could better present a case and not about re-arguing the case to them.

When you lose a case, it is not the end of the world. The arbitrator doesn’t think less of you as a person or advocate and doesn’t judge your client for their choices. Every case has to have a loser, sometimes it will be you. Learn what you can from the award and your presentation of the case, and go win the next one!