Originally from: AAA Handbook on Labor Arbitration and ADR - Third Edition

CHAPTER 19

THE IMPACT OF LAWYERS ON LABOR-MANAGEMENT ARBITRATION

Richard Mittenthal

I. Introduction

Those who promoted arbitration of labor-management disputes understandably argued that arbitrators would have expertise that judges could hardly be expected to possess. Such expertise was presumed to give us the kind of insight that would make our decisions reasonable and realistic. But the argument for arbitration went much further. It was said that arbitration, contrasted with litigation, would be less formal, less time-consuming, and less costly.

Anyone who served as a labor-management arbitrator in the 10-20 year period following World War II would probably concede that those benefits were realized.

However, in my opinion, there is at least one development that has caused the typical labor-management arbitration to become more formal, more time-consuming, and more costly. I refer to the frequent use by the parties of outside attorneys. (By “outside,” I mean lawyers retained from a law firm to represent one side or the other.)


II. Increased Time

To begin with, consider the process of establishing a date for the hearing. Absent outside counsel, this date could be established fairly quickly because only the representatives of labor and management had to be consulted. Today, a hearing date must be acceptable not just to the parties’ representatives, but to their attorneys as well. Delay is the inevitable by-product. A hearing that could have been set up in a month or two now must be scheduled much later.