Brian Sanford and Elizabeth “BB” Sanford are partners in the Sanford Firm specializing in representing employees at trial and arbitration.

Arbitration of employment disputes are now part of the familiar litigation landscape. Navigating the process to a successful resolution, an attorney needs all the skills available for a courtroom trial, from selection of a decision maker to the final award. Arbitrations are similar to bench trials. Bench trials are similar to jury trials. Judges and arbitrators are people, too. Logic, emotion, and credibility are essential for any trial or hearing. This article outlines the process and methods of an employment arbitration, assuming that the arbitration agreement is binding and not part of a collective bargaining agreement.

The Beginning

If the action starts as a lawsuit, consider staying the federal or state case rather than dismissing the case. The Federal Arbitration Act provides for the stay and a court has the discretion to stay rather than dismiss. 9 U.S. § 3. See Bailey v. Northrop Grumman Ship Sys., Inc., 2009 WL 1212475, at *2 (E.D. La. Apr. 28, 2009).

A stay allows the court to issue enforceable subpoenas and to enforce a final award if necessary. A federal court can administratively close a case to remove it from the statistical records of disposition dates.

An employee can initiate an arbitration at most organizations, such as JAMS, AAA, and FNRA, with a reduced filing fee.

Choice of Arbitrator

Selection of an arbitrator, like a jury voir dire, depends on background information. In addition to consulting other attorneys about the prospective arbitrators listed, arbitration organizations keep records of final decisions by arbitrators thanks to statutes in California, Maryland, and New Jersey. See Consumer and Employment Arbitration Statistics report, American Arbitration Association. https://www.adr.org/employment; Consumer Case information, JAMS, https://www.jamsadr.com/consumercases; Dispute Resolution Statistics, FINRA, https://www.finra.org/arbitration-mediation/dispute-resolution-statistics. Both Lexis and Westlaw keep records of arbitration awards.

After the arbitrator is selected by the parties, interact as much as possible with an arbitrator, within professional bounds. The more that is known about the arbitrator, how they think, act, and perceive the world, the better an attorney will be able to communicate and persuade.

Procedural Rules

Because the rules of procedure for most arbitration organizations are broad and bare, arbitrators and parties often default, sometimes by agreement, to federal or state rules of civil procedure. By adopting the federal or state rules, the parties can benefit from established norms and case law concerning discovery. Understand the arbitrator’s preference early in the process.

Dispositive Motions

Dispositive motions are not favored in arbitrations to permit the informality, efficiency, and open observation of evidence considered part of the advantage of arbitration. Dispositive motions can be time-consuming and expensive. The presentation of evidence at an arbitration hearing can save time and money and give the parties a sense of a full hearing of the evidence. Most arbitrators will require a preliminary letter outlining a prospective motion for summary judgment before allowing a dispositive motion. Because of the preference in arbitration to deny these motions, carefully weigh using the motion.

Venue

Always choose neutral ground. If the arbitration association does not provide a conference room, borrow or rent a space. One party should not benefit from the convenience of the venue or any subconscious effect on an arbitrator. Avoiding the appearance of impropriety is reason enough.

Use a Jury Charge

A jury charge remains an excellent roadmap for the arbitrator and presentation of the case. Prepare and present a jury charge to the arbitrator at the beginning of the trial. Consider arguing the jury charge at closing.

Arbitrator and Counsel Professionalism

To the extent possible, become and stay friends with the arbitrator and opposing counsel during the process. It may be difficult, but our better nature can disagree without being disagreeable.

Trial Briefs

Trial briefs are valuable on proof and evidentiary issues, such as elements of direct and indirect evidence, causation, and damages. Provide short briefs explaining fundamental issues.

Transcript

Having a court reporter attend the hearing to transcribe the testimony is preferable to relying on notes. However, the post-hearing process may be much easier without the time required to pour over a lengthy transcript. If a transcript is not made, take good notes and write any post-hearing brief or findings within a day or two of the conclusion of the hearing while memories are fresh.

Voir Dire

Ask the arbitrator if a short voir dire could be conducted with basic background questions about the arbitrator’s life experience as an employee, a manager, and an attorney. Nothing prohibits it. The arbitrator is as much a fact finder as a jury. The arbitrator can say no. The arbitrator can say yes. This is undeniably useful information.

Opening Statement

Never waive an opening statement. Prepare the same opening statement you would give to a jury: a simple description of the case, an explanation of the liability issues to be decided, the supporting evidence to be presented, and a discussion of damages.

Rules of Evidence

Gone are the days when arbitrators freely admitted hearsay and accepted a witness statement in lieu of testimony, simply giving it less weight than live testimony. Although not mandatory, assume the federal or state rules of evidence apply. Make this determination, if possible, before the hearing starts. Similar to the adoption of federal and state civil rules, federal and state rules of evidence offer well-established rules for admitting and evaluating evidence. Most arbitrators are familiar and comfortable with rules of evidence from their legal background.

Examinations

Arbitrators might be more patient than juries in hearing duplicate evidence, but that doesn’t mean an attorney should do it. The arbitrator’s comments and questions matter. Body language matters. Keep an eye out for when the arbitrator has had enough evidence of a particular fact. An attorney can ask the arbitrator whether an issue is understood or more testimony is needed. Arbitrators are free to ask their own questions of witnesses, as well.

Virtual Witnesses

Although presenting witnesses via virtual platforms such as Zoom or Teams has existed in arbitrations and courtrooms for years, COVID made it ubiquitous. The flexibility of arbitration hearings particularly permits presenting a witness virtually from remote locations. As with all things electronic, test the internet and the hardware.

Flexibility of Times and Dates

The convenience of scheduling a conference room over a courtroom allows the parties to move dates, expand or contract a day of testimony, and even interrupt the hearing for a few days.

Closing

Never waive closing arguments, even if the judge prefers argument by briefs. Do both. The memory and emotion are ripe at the end of the hearing, not a few weeks later. It doesn’t have to be long.

Findings and Conclusions

An arbitrator may request a brief in support of an award. Suggest findings of fact and conclusions of law in the form of a proposed award instead. If the arbitrator requests a brief anyway, provide it, but also provide proposed findings of fact and conclusions of law. Findings and conclusions detail for the arbitrator each material fact and legal conclusion. Annotate the findings of facts with cites to testimony and exhibits. Annotate the legal conclusions with law. Write it as an award for the arbitrator’s signature. At the end of the day, it will be more helpful and persuasive than a brief.

Attorneys’ Fees

Suggest to opposing counsel and the arbitrator that attorneys’ fees be determined after an interim determination on liability. The fees can be determined in a summary proceeding upon declarations or affidavits. A final award can be made after the attorneys’ fees are determined.

Conclusion

At the end of the day, do not leave your jury trial skills at home when proceeding with an arbitration.