Labor arbitration was created to avoid the lengthy delays and anti-union bias that was associated with the courts in the early 20th century. The United States Supreme Court’s Steelworkers Trilogy confirmed the value of labor arbitration as a labor relations dispute resolution tool in 1961 and arbitration has been the culminating point of grievance procedures ever since.
In theory, arbitration should be a quick and efficient process for resolving grievances but, in recent years, cases sometimes take as long as litigation does. FMCS reports that cases take, on average, more than 250 days from arbitrator selection to final decision. AAA has reported similar numbers in the past. That doesn’t feel efficient to anyone.
Speedy arbitration has many benefits. There is less back pay exposure, better availability of witnesses and sharper memories, and quicker resolution of the issue, leading to greater certainty about the “law of the workplace.” In other words, the parties get it over with!
There are many ways to streamline or shorten your arbitration case. To resolve grievances more quickly, try these tools:
1. Grievance Mediation: Instead of going straight to arbitration, consider using a mediator from FMCS or your state mediation service to discuss settlement. This case be helpful when one party has fewer resources or believes a settlement could be achieved with the help of a neutral third party. Many state agencies offer free or low-cost mediation services.
2. Hire an arbitrator by availability: A newer arbitrator offers several benefits that can shorten the length of time to hearing and the cost of the proceeding. Their per diem rates tend to be lower, on average. They have more availability to schedule cases sooner than busier arbitrators, which reduces back-pay exposure and ensures quicker resolution. With a lighter caseload, the arbitrator can write a decision more quickly too.
3. Skip the court reporter: In some cases, a transcript is a necessary expense, either because the record is voluminous, the oral testimony is essential, or the arbitrator relies on it for maintaining the record. If you have very few witnesses, a one-day hearing, and a willing arbitrator, consider doing the case without a court reporter. Non-discharge disciplinary cases or cases with only one or two witnesses are amenable to this approach.
4. Skip the closing brief: Some arbitrators request a closing written brief. I’ve only requested one on a few occasions: when we were long past 5 p.m. and everyone was tired, and when a legal issue arose which the parties and I agreed necessitated legal briefs. More often, one or both parties wish to file a closing written brief, and that’s fine, too.
I always welcome closing arguments at the hearing instead of written briefs. The case is then submitted, and I can start writing a decision. The parties don’t have to pay their lawyers to write a brief and the decision comes that much more quickly.
In some cases, one party wants to write a closing brief, and the other wishes to do an oral argument. In most cases, the parties won’t agree to this split, because the oral arguer doesn’t want to preview their arguments for the brief writer and the brief writer doesn’t want to leave the oral arguer alone with the arbitrator. There is an exception I use if the parties are amenable to it. If there’s a court reporter present, the party who wants to give an oral closing argument can give it to the court reporter who transcribes it for the record. The other party and the arbitrator are not present for the argument. The court reporter transcribes it as a separate document and sends it to the arbitrator. The arbitrator will provide it to the other side when the brief writer has submitted their brief. This saves one party the expense of a closing brief.
5. Ask for a bench decision: A bench decision is one that the arbitrator “gives from the bench” at the hearing, meaning they render a decision after the conclusion of oral arguments but before everyone leaves. This saves the expense of the arbitrator’s study and writing fees. If the arbitrator or the parties aren’t comfortable with that approach, ask the arbitrator for a summary decision within seven days. A summary decision is similar to a bench decision but in a written format. You should request this from the arbitrator at the time you retain them. Some arbitrators may charge a full day of study and writing, however, so be clear about what you hope to do (save money).
6. Streamline and Stipulate: Many practitioners treat the hearing like a full-blown jury trial and prepare as though every single fact or document will be contested by the other side. In reality, very little is in dispute. Many facts can be stipulated. Many documents can be joint exhibits. A short pre-hearing discussion between the advocates can yield a lot of agreement and save time and paper. Here are some facts that can be stipulated: dates, prior discipline, names of witnesses, and locations. Preparing the CBA, grievance file, personnel records, timesheets, policies & procedures, and training materials as joint exhibits also shortens the hearing and shrinks the paper record.
7. Don’t Use Lawyers: This suggestion is probably unpopular with both lawyers who do these cases and clients who are intimidated by doing their hearings. Unions and employers could permit staff to present the grievance to the arbitrator, instead of hiring outside counsel. The truth is experienced staff are just as good at advocating at arbitration as a lawyer is. Staff have a sense of the contract, the history of the parties, and what’s relevant to the case. Using salaried staff is a cost-effective method of doing an arbitration hearing. Both union representatives and human resource specialists can be trained to advocate at hearings successfully.
8. Submit your dispute on the papers: When you submit a dispute “on the papers,” it means you are submitting evidence and written briefs to the arbitrator without a hearing or sworn witness testimony. This is particularly successful for arbitrability issues or remedy issues. It saves the cost of the hearing.
9. Arbitrator with a hearing officer: In the past, experienced arbitrators would hire staff to act as hearing officers. Almost unheard of now, the hearing officer would conduct the hearing, make a record, and solicit arguments. The hearing officer would prepare a summary of the facts and might make a recommendation on the outcome but had no authority to issue a decision. All this would be submitted to the more experienced arbitrator, who would render a final and binding decision on the record compiled by the hearing officer. This is similar to how the National Labor Relations Board and some state labor boards work. Many esteemed arbitrators started this way. It has largely fallen out of use, which is unfortunate. The arbitrator pays the hearing officer, so there’s no additional cost to the parties. The hearing is held and the decision is rendered much more quickly than if the arbitrator had done the case. The outcome is no different than if she’d done it and the parties still benefit from the experienced arbitrator’s wisdom and expertise. Parties might consider asking an arbitrator to use a hearing officer or take up the offer of an arbitrator who is interested in resuming this practice.
10. Hearing by videoconference: Before the COVID-19 pandemic, it was rare to hold a complete hearing by video conference. The technology, when used, was reserved for the occasional witness. As a result of the shelter-in-place orders and concerns about health, arbitrators started developing protocols for hosting video hearings. While it’s not appropriate for every case, video hearings can reduce travel expenses and time without reducing quality. My policy is to only conduct in-person hearings that are in my area and to conduct video hearings for any place I would need to fly to. I adopted this policy as an effort to “green” my practice.
If this column feels familiar to you, it’s because I adapted it from my book The Beginner’s Guide to Arbitration Practice. I’ll feature adapted columns occasionally, and provide new content as often as possible. Please let me know what you would like me to write about. Do you have questions about arbitration that I could answer?
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