Can I Talk To The Arbitrator?
When an advocate can, and cannot, speak to the arbitrator alone
Many advocates are intimidated by arbitrators and don’t try to have discussions with them outside of the bounds of a particular case. Other advocates, especially those who have known an arbitrator for many years, feel comfortable chatting with an arbitrator on non-case subjects but understand the boundaries of ex parte communications. Very few advocates try to influence an arbitrator directly; I suspect the few that try are successful. So when can you talk to an arbitrator?
Ex parte communications are prohibited. They are communications made directly between one party and the arbitrator about the substance of the dispute which is before the arbitrator. Talking to an arbitrator without the other party about scheduling, for example, is typically not considered ex parte. It would be come prohibited if it the party mentioned some aspect of the case itself.
Good: “Will you be able to start the hearing at 10 at the employer’s offices?”
Bad: “We’ll see you at 10, then. Hopefully we can start promptly because the first witness is usually drunk by noon. I hope the case is over by then!”
In other words, a party can share time, location, and logistics information, or call an arbitrator to request such information, but should not share details about the issue, evidence, CBA, or other party representative.
If a party does that, an arbitrator must ask themselves, whether, if the other side found out, it might cause them to think that the arbitrator could not be impartial in the case. The arbitrator will typically do two things in this situation. First, tell the speaking party that they will disregard the comment and only consider the case on the merits, and that they will be letting the other side know the conversation occurred. Second, the arbitrator will communicate to both parties: “During a phone call to discuss hearing logistics, Mr. X mentioned an issue about the credibility of a witness. I informed him that I would disregard the remark and consider only the merits of the case. Please let me know if you have any questions or concerns about this matter and we can arrange a phone call to include all parties.”
That’s obviously a worst case scenario and thankfully, doesn’t happen too often. But can you speak to the arbitrator about matters unrelated to the case, such as baseball, religion, or politics? I guess you can but it’s dangerous territory! It’s best to stick to pleasantries (weather, traffic) until after the case is decided.
But arbitrators get a little lonely, and may occasionally be overly friendly. If you feel like the arbitrator is being too chummy with you or the other party, I suggest asking for a side bar with the other representative and the arbitrator, and let them know that due to the seriousness of the case, you fear that the banter is causing you (or your client) concern that the hearing isn’t reflecting how much is at stake. If you fear worse, like the client and the arbitrator seem like best friends but it wasn’t disclosed before the hearing, it is still appropriate to raise it to the arbitrator in the presence of the other side. The parties are entitled to an impartial referee throughout the entire matter.
I see many of the same parties and representatives again and again. At this point, I know some details about their lives and they know a few about mine, like number of kids and recent vacations. However, I consider overly friendly communications to be off-limits in the hearing, especially because the grievant, the union, and the employer all want me to appreciate what’s at stake for them. If I’m too chummy, it can appear that I am partial or not taking the matter seriously, and that’s the last impression I want to give.
Now, if you run into the arbitrator at the grocery store or at a fundraiser or bar function, it’s okay to talk to them! Just do not discuss any pending or potential cases or situations which might possibly give rise to retaining them. Most arbitrators don’t bite; we are a friendly bunch who are very good at setting our own boundaries. No need to run and hide from us (unless you want to).
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I’ve written recently about changes to FMCS as well as the influx of new arbitrators we are likely to see with widespread changes happening in the labor relations landscape. I wanted to note two other relative newcomers to the labor arbitration field. I am not endorsing them; I just wanted to note that there are other “players” in the roster business.
The Labor-Relations Connection has been operating for several years on the East Coast and I believe is considering Western expansion. They are offering services similar to the American Arbitration Association and have quite a few East Coast arbitrators on their roster.
Similarly, JAMS just announced that they will be offering labor arbitration services. JAMS arbitrators are usually retired judges who charge a per diem fee that is substantially higher than is customary in labor arbitration so it will be interesting to see if they offer a different rate structure or if the parties are interested in this offering.