Originally from Dispute Resolution Journal

The foreheads of many seasoned employment arbitrators have been known to bubble with sweat at the prospect of arbitrating the claims of a pro se party. The common expectation, often confirmed by experience, is that pro se parties bring high levels of emotional involvement and low levels of adversarial skill to the proceeding, leading to vexing ethical and jurisprudential concerns which challenge the impartiality of the arbitrator and the fairness of the arbitration.

If, for example, the arbitrator intervenes during a pro se party’s interrogation of a witness, to elicit testimony which is material to the pro se party’s case and which otherwise would not be elicited, is the arbitrator being partial to the pro se party or acting to ensure fairness in the process?

Similarly, what if the pro se party claims to have been discharged in breach of job security provisions of the employment handbook, but the arbitrator recognizes the facts might better support a claim of age discrimination under the Age Discrimination in Employment Act (ADEA)? Should the arbitrator call upon the parties to litigate the ADEA claim, or instead allow it to be waived?

Or let’s assume that the employer’s counsel submits a meticulous, tightly reasoned post-hearing brief supported by extensive citations, while the pro se employee submits a rambling narrative without reference to prevailing law. Should the arbitrator, in the interests of fairness, conduct independent legal research to find law which supports the employee’s point of view?

The arbitrator must be impartial. The arbitrator must also ensure the fairness of the process. These bedrock arbitral principles are put in real or potential conflict each time the pro se party fails to ask the right question, fails to recognize an important claim, requests strategic advice from the arbitrator, diverts the process with emotional overflow, or otherwise lacks the expertise to conduct discovery, comply with procedural rules, perform legal research, produce appropriate evidence, and argue legal issues. When opposed by sophisticated counsel, the pro se party is at a substantial disadvantage, and may not even know it. How far should an employment arbitrator go to balance the scales?

This article will review provisions in the AAA’s National Rules for the Resolution of Employment Disputes (the Employment Rules) and also the AAA’s practices with respect to pro se representation. It will then pose and attempt to answer, as an arbitrator might, three typical pro se problems.