What To Do If the Arbitrator Goes Silent
Break Glass In Case of Emergency
I received news yesterday of the passing of another great arbitrator, George Roummell. I had the good fortune to serve as a faculty member with George at many Labor Arbitration Institute conferences. He was brilliant, spirited, and funny. He will be missed among our ranks and I will post an obituary when it’s published.
I wanted to comment today on one small fact that I also learned. When George passed, he had three pending awards to finish. He was working until the end. I don’t know what his transition plan was, or who will finish those cases, but I wanted to share some thoughts on what to do if your arbitrator gets sick, passes away, or otherwise becomes unavailable.
If this happens before the case is heard, the solution is easy (albeit annoying): Let the arbitrator know that you’ve decided to select another arbitrator and do so. You may prefer to give notice, like, “If we don’t hear from you by Friday, we will assume you are no longer available and will move on to another arbitrator.”
If the case has already been heard but the arbitrator has not issued an award, reach out to their office by phone call, email, and if necessary, certified mail. This will usually prompt a response from the arbitrator, their assistant, or a family member. If that doesn’t work, reach out to the agency that provided the list (FMCS or AAA for example) or to the NAA Regional Chair for your region. While they may not have information to share, they can usually track down someone to help, either in the arbitrator’s orbit or by arranging to have another arbitrator assist the family. If you don’t know the regional chair or the Arbitator wasn’t a member of the Academy, reach out to another arbitrator who likely knew the person to seek guidance.
If the arbitrator has passed away, the parties will need to decide how to proceed. Do you want to go with a new arbitrator recommended by the person dealing with the workload of the deceased arbitrator, or select your own? Do you want to have a whole new hearing, or is there a complete record and briefs that can be provided to a new arbitrator who can base their award on those items?
I took over a case from an arbitrator who had passed where the record was complete and the arbitrator had even drafted a statement of facts. I still reviewed the transcript and documents and wrote the award based on my assessment of the record.
If you are wondering if you can attend an arbitrator’s funeral, the answer is yes, to the same extent anyone else can. Be judicious about your communications with the family and don’t discuss the case with other arbitrators who are present, in case one of them takes over the case. If it’s an open service, the family and your colleagues will appreciate your sympathies.
The situation is less cut and dried when the arbitrator has a medical emergency and cannot provide guidance about when they might be able to issue an award. If too much time passes, the parties can mutually agree to select another arbitrator. If an arbitrator is habitually late, and the parties think the arbitrator has violated the code of professional responsibility, the parties can file a grievance with the National Academy of Arbitrators’s Committee on Professional Responsibility and Grievances.
Hopefully, it won’t come to that!
As always, I welcome questions, and invite you to share this post with others.