As an advocate for a nationally recognized union, I spent about a dozen years representing the little guy from managerial abuses. Often times that representation was in front of an arbitrator. Often times, my guy won his case.
What I know about arbitrators is somewhat fickle, just as are they. We in the field used to joke that how an arbitrator ruled depended largely on whether or not his breakfast agreed with him, whether or not she’d just had a fight with her significant other, or whether or not the hotel staff had been nice to him last night. And the punch line to that joke is that arbitrators rarely rule on the case in front of them. Reading their decisions was our first clue.
Experience has taught me that arbitrators most often rule on the best presentation, or the best example of persuasion. Do I agree with that philosophy? Of course not; but it’s part of the game. So instead of learning how to present the best factual case possible, affording the arbitrator the opportunity to rule solely on the case’s merits, advocates learn how to present, prepare, dress, and how to dress their grievants/clients.
In arbitration, precedent is almost non-existent as arbitral theory is just that – it’s not federal law. Nor is it rocket science. There are three basic musts:
1. Know both sides of your case
2. Know your grievant/client
3. Know your arbitrator
If your arbitrator is a pretty boy, for example, and you know this because during previous hearings you’ve seen him wear flashy jewelry, expensive suits, and his hair is always perfectly in place, please understand that he must remain the prettiest person in the room. Prior to your hearing, inform your grievant/client that he/she must dress down. Do not wear jeans, but wear earthy colors, no jewelry except a wedding band (if applicable), and no makeup. (If your client is a man and insists on wearing makeup anyway, tell him he needs to skip it for the duration of the hearing. He can make his statement elsewhere.)
If your arbitrator is a former or currently practicing judge, he’ll be more apt to listen to compelling arguments that are taken straight from the contract. He’ll be less inclined to rule as previous arbitrators ruled simply because you asked him to. So don’t ask him to unless what you’re citing is of such extreme importance that you’d be doing your grievant/client a disservice by omitting it. This arbitrator already believes he is smarter and better than you, so your research into the history of these particular merits will mean nothing to him.
The presentation of arbitral history is fine if you don’t overburden your arbitrator with reams of complex material that he only has a few days to review. You’re not paying him that well and he won’t feel obligated to read every word anyway. Give him your best three. If you can’t possibly weed that few, then pluck no more than your best five. Tell him what pages are pertinent, but don’t read the text to him. You’ll only bore him, and if he’s keeping a score-card, you just lost a few points.
If you know whether or not your arbitrator leans one way politically over another, play that up in your closing arguments with related examples. The key word is ‘related’. Don’t make up a story just to impress him with your similar view. Tell him something about the case that is in line with what he already believes.
Your client should be silent during the hearing except when called upon to testify. If you know that he/she has a propensity for angry outbursts, you might do him/her justice to figure out a way to bar him from the hearing. Failing that, threaten him with refusal of future service if he doesn’t obey your every command, the first and foremost being to shut up.
Your objective as an advocate is to bring the arbitrator around to your way of thinking. Use the tools you have and know them well. It’s not the brand of axe that matters, or how well you’ve oiled it. The power is in the finesse of its wield.