Considering Publication
Why Not Publish Your Awards
In the letter accompanying the decision, some arbitrators also include a request that the parties allow them to submit the decision for publication. Not all arbitrators try to publish their awards, and even arbitrators who do publish are judicious in doing so, only requesting to submit decisions that they believe are well-reasoned and well-written.
In my experience, the losing party often objects to publication, while the winning party agrees. Because the arbitrator cannot ethically submit their decision for publication without the consent of both parties, the decision doesn’t get published. This is unfortunate. Published decisions are one way for unions and employers to learn about cases and the arbitrator’s approach to their novel issue.
Most arbitrators and publishers are happy to redact identifying names of the grievants and witnesses, and publication is limited to readers of a dwindling number of labor law guides. The temporary embarrassment of losing doesn’t outweigh the value to other unions and employers of learning about the arbitrator’s approach to cases.
If publication were more common and accepted, there would be more information upon which the parties could base their own decisions. Knowing that a vast majority of arbitrators disagree with one side might encourage settlement or withdrawal.
Next time an arbitrator asks if their decision might be submitted for publication, ask whether it could be edited or redacted for publication to limit exposure of information about your organization, rather than refusing outright. Your decision could help modernize labor law.
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This week, I am attending the Annual Meeting for the National Academy of Arbitrators in Boston. Despite its name, this meeting is an educational conference for arbitrators and advocates and not just a membership meeting. This year, there are some fascinating topics about AI, collective bargaining in sports, and a session called “De-escalation: Preventing and Interrupting Abuse and Violence at Work.” You can follow the proceedings on LinkedIn by searching for #naaannualmeeting.