How Many Days of Hearing Do You Need?
The Most Expensive Question in Arbitration
I spend a lot of time in this newsletter offering tips on how to make your arbitration hearing more efficient. I am a big proponent of efficiency for a few reasons. First, the whole point of the grievance procedure is to have quick resolution of a workplace dispute, and labor arbitration should not be exempted from that principle. Second, efficient cases are less expensive cases. Spending members’ dues and company money on the arbitrator are not the best use of resources. Third, most grievances only need one day of hearing to be completed. No matter how important the case is to the parties, most arbitrators have seen almost every kind of case, and there are rarely factors that are so unique that they warrant inefficiency.
Let me repeat that: most grievances only need one day of hearing to be completed. So the default answer to the question in the title is ONE. You need one day of hearing. The problem is that when you are scheduling the hearing with the arbitrator, you may not be familiar enough with the case to know for sure if one day will suffice.
Without fully preparing the case, how can you figure out how many days you need Here are some reasons you might think you need more days.
There are more than six witnesses in total.
It can be difficult to get in more witnesses in a single day, both for scheduling reasons and for the length of their testimony. Unless you are certain that many of those witnesses will be under oath for less than a half hour for both direct and cross, you will probably need more days if you have more witnesses.
Quick fix: eliminate duplicative witnesses, elicit testimony from hostile witnesses, make stipulations.
One fix that probably won’t work: signed statements. These are hearsay unless the witness can testify about them or the other side stipulates to their use as a primary source. Otherwise the arbitrator will not use them to establish any facts.
The grievant/appellant has a lot of character witnesses.
There are a couple of industries (actually, just one: law enforcement) where it is common for the grievant to want a lot of their co-workers to testify about what a great cop s/he was. They call their AA sponsor, their pastor, their spouse, their girlfriend, and both of their moms to testify about the stress he was under at the time of the incident.
If this is the kind of case you have, expect to go for as long as the grievant can keep the ball rolling. I’m not stereotyping police officers; in California, their defense is paid by a statewide fund and there’s no incentive for the advocates to keep the hearing short because the local union is not paying the bill.
Quick fix: stipulate, stipulate, stipulate. Or just schedule two blocks of days, with the second block beyond the arbitrator’s cancellation period. If the matter is resolved in the initial days, you can cancel the extra without incurring additional fees.
The arbitrator interrupts to ask a lot of questions or is the source of other delays.
This is a good thing to know about an arbitrator when you select them. As I’ve said before, both parties and the arbitrator are responsible for the conduct of the hearing. If an arbitrator asks a lot of questions, ensure that your witnesses are well-prepared to provide short but factual statements. And don’t be afraid to let the arbitrator know if an area they’ve opened is not relevant. It may be uncomfortable to do this in front of the client but you can tell the arbitrator, “we’ll have another witness on that issue,” or “I’d like to focus on [X issue] but if you need more information on it, maybe we can prepare a stipulation.” You can do this in a side bar as well.
Quick fix: prepare, prepare, prepare. If you get an arbitrator you know does this, reach out to the other side to make a game plan for keeping the hearing focused. Another quick fix: Ask around about your arbitrator before you select so you can avoid arbitrators who might not match your style.
There are a lot of documents in evidence.
Similar to witnesses, you can anticipate a longer hearing if there are a lot of documents that are going to require several people to attest to, or one person to spend a lot of time explaining. In reality, a well-prepared witness can provide summary testimony that the arbitrator can rely on does not need more than a day.
Quick fix: Have your document witness prepare a summary of the documents, with references to the underlying facts, ahead of time, and share with the opposing advocate. Explain what it is, and what the witness will say. Provide the underlying documents so their witness can provide their own explanation. This process is likely to result in a settlement. When it does not, the arbitrator will be glad to have a summary with a few concrete examples that they can rely on to draw conclusions.
Unavoidable absences, personal emergencies, or other matters beyond the control of the parties. This is hard to anticipate at the time you select the arbitrator, but some obvious considerations are holidays, anticipated retirements, and pregnancy leave.
Quick fix: Don’t schedule a possibly long arbitration hearing before one of those events.
The number of hearing days will always depend on your level of preparation. Consult with your client about how many witnesses and documents there are and how many days of grievance meetings or bargaining have been held. Having a conversation with the advocate on the other side is also a great place to start. But remember, the default number of days is always ONE, and you should strive to prepare your case so that it can be completed in that time.
Let me know if you have any questions or thoughts!