Don't Be Afraid of the Bench Decision
Getting the Answer Right Away
A colleague of mine recently asked which I found more difficult: conducting the hearing or writing the decision. For her, conducting the hearing was more difficult. She's a little shy and finds orchestrating the different parts of the hearing to take a lot of energy and presence. She likes writing the award more. She can spend time with the evidence and work out her decision in the process of writing it.
I told her that I find writing the decision to be more difficult. I enjoy conducting the hearing and for me it is the best way to receive and consider the evidence. Writing an award means diving back into information and reconstructing a story that I've already heard once, probably several months earlier at the hearing. Then I need to spend hours reconstructing the arguments and facts and writing them in a coherent award. Mind you, I love writing, but the award is the product of my thinking process, not the process itself. In fact, I told my colleague, I've really grown to prefer bench decisions.
Bench decisions are issued at the end of the hearing after the close of oral argument. They are much more common in expedited arbitration proceedings, but I've occasionally done them in ad hoc cases at the parties’ request.
My colleague felt that bench decisions are too “on the spot.” They are, and that's the point. Bench decisions maximize the efficiency of the process. Like her, I used to feel trepidation about speaking extemporaneously while facing the losing party as I told them that they lost.
I handled the extemporaneous part of the process by writing a brief outline of my decision before announcing it to the parties. It might look like this:
The employer demonstrated/did not demonstrate just cause for:
Reason
reason
reason
Therefore, the grievance is sustained/denied. Next step is . . .
That quick outline takes only 5 to 10 minutes to write, and it's fine to read aloud. That is all that is needed.
As for telling the losing party bad news, that is something management and the union have to do all the time. If the manager or union can pass along bad news, I needed to learn to do it too. It remains nerve-wracking to tell a person I'm upholding their discharge or that they weren't credible, but that's my job.
The parties should consider using bench decisions more often. It shifts the finality of the matter to the arbitrator and the outcome is known at the end of the hearing, allowing the parties to move on more quickly.
There are plenty of reasons to want a written decision, including not having to face an angry client or grievant when they first learn the outcome. More importantly, you might want a record of the outcome to better understand the collective bargaining agreement in the future. Bench decisions may not be great in contract cases, but in lower-level disciplinary matters, they can expedite the process of resolving the workplace dispute.