Originally from Dispute Resolution Journal

The practice of arbitration is such that those engaged in it often operate in a quasi-legal environment without the benefit of a well-developed and established body of statutory and case law. Concepts long accepted as part of the legal framework that surrounds the profession are rarely questioned by arbitrators and even where practitioners have attempted inquiry, the results are often contradictory and inconclusive. The issue of an arbitral immunity from subpoena to testify in a criminal proceeding is illustrative of this point. The arbitrators with whom I have discussed this problem have long believed and, indeed, have practiced under the presumption that the scope of arbitrator immunity from subpoena was all encompassing and that although an award was subject to varying degrees of judicial review, the arbitrator or the notes used therein were privileged. This article sets forth the experience one arbitrator had when subpoenaed to appear as a witness in a criminal trial to testify to events said before him while serving in his official capacity.

The arbitration arose pursuant to a collective bargaining agreement that provided for an expedited arbitration procedure in a matter of employee discipline between a state government and a public sector union.' The grievant was charged with a series of actions that included kidnapping, assault, and other acts of misconduct. Criminal charges were also preferred by the Office of the District Attorney, with a trial set to commence some time after the anticipated date of the arbitration award.