Where Are All the Arbitrators?
A New Idea for Expanding Our Ranks
Recruiting new arbitrators is a project of mine. I wrote The Labor Arbitration Career to provide guidance to people who are considering the profession but are unsure about whether to take the plunge. I mentor a group of arbitrators who are distinguished from me only in their years in the profession. They are all experienced labor relations practitioners who’ve decided to become neutrals. It’s a wonderfully smart and diverse group of folks and I hope they all gain widespread acceptability from parties in labor arbitration.
Still, advocates frequently wonder (to me) why there are so few new arbitrators. There are really two reasons that stem from the same simple economic issue. We have a supply problem, and we have a demand problem.
On the demand side, parties are hesitant to select new arbitrators for cases that have high stakes in their workplace. Given the cost of arbitration these days, almost every case is “high stakes,” and no one wants to take a flyer on the new person. The decline in unions has also reduced the number of grievances, and therefore the number of arbitrations. When Wisconsin got rid of its public sector bargaining rights, arbitrators in that state had to retire or launch their practices in new locations. Demand → down.
On the supply side, the basic reality is that, because it’s hard to get selected in your first few years as an arbitrator, it’s economically very difficult to commit to the job. Unlike commercial arbitrators, labor arbitrators cannot be advocates. They can teach or write, but those aren’t known to be lucrative pathways either. Labor arbitration is also much less lucrative than commercial arbitration. Unions, municipalities, and small employers don’t have the deep pockets that commercial interests have to pay arbitrators.
It’s all a bit of a Catch-22. The mentoring group I co-lead attempts to ready that by referring arbitrators who are launching their practices and connecting them with writing opportunities, and the same model is in place in other regions. I came up with a new idea, though, and I am interested to see what people think.
I propose that we have three-person neutral panels that would hear grievance disputes. The chair would be an arbitrator known to the parties and selected by them - and maybe an NAA member - and the other two would be arbitrators whom the parties have not met or worked with before. The chair would have to agree to share their fee with the other panelists but the benefit to the chair would be that the other arbitrators would assist with pre-hearing matters and drafting the decision. The benefit to the parties would be an opportunity to meet new arbitrators while being assured that the tie-breaker (should it come to that) is the mutually selected chair. There’s a benefit to the new arbitrators in getting the experience of the hearing and the exposure to the parties.
This panel method could be implemented through a side letter agreement with a short term or on an ad hoc basis. The NAA could identify members willing to share their fees with an understanding that the chair gets to decide how many cases they’d like to take in this way. NAA members have a professional responsibility to support other arbitrators in this way and would be contribute to the health of the profession.
I’m curious: if you select arbitrators, would this be a model you’d be willing to try?
Curious to hear your thoughts. If you like this idea, please share it!