Commencing the Arbitration Process - Chapter 5 - Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators
Rocco M. Scanza and Jay E. Grenig both serve on the American Arbitration Association's labor panel.
Mr. Scanza is an Attorney, Arbitrator and Mediator of labor and employment disputes. He is also the Executive Director of Cornell University's Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national Vice President at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.
Mr. Grenig is a Professor of Law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.
§ 5:01 GENERALLY
The arbitration agreement may specify the procedures to be followed in commencing arbitration proceedings or it may incorporate by reference rules (such as the Commercial Arbitration Rules of the American Arbitration Association) to be followed. In the absence of such a provision, statutes govern the commencement of the arbitration proceedings.1
The arbitration process begins with either a demand for arbitration in connection with the arbitration clause in a contract, or with a submission agreement in which the parties agree to submit a dispute to arbitration. Rules incorporated into the agreement may contain requirements as to the content and service of the demand.2
If the contract does not provide for arbitration, a dispute may still come before an arbitrator if the parties jointly submit the matter to be arbitrated. Both parties must normally sign the submission agreement and state the nature of the dispute.3 In the submission, the parties may agree on the issue to be resolved in the arbitration and include it in the submission agreement.
The Revised Uniform Arbitration Act provides that a “person initiates arbitration by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for commencement of a civil action.”4 The notice must describe the nature of the controversy and the remedy sought.5 The notice must be given to all parties to the arbitration agreement, not just to the party against whom a person files an arbitration claim.6
The exhaustion of contractual remedies is a condition precedent to arbitration. Contractual remedies may require mediation, an architect's review in a construction dispute, or a completion of a multistep grievance process under a collective bargaining agreement. Once these contractual remedies have been exhausted, an arbitration demand may be made. Conditions precedent can be waived if both parties submit a matter to the arbitrator without one of them first insisting that all conditionsprecedent be exhausted.