Conducting the Arbitration Hearing - Chapter 9 - 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.
§ 9:01 GENERALLY
The purpose of the arbitration hearing is to give each party a full and fair opportunity to present its case to the arbitrator. At the hearing, a party to the arbitration has a right to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.1 Under the Revised Uniform Arbitration Act, an arbitrator may decide a request for summary disposition of a claim or particular issue.2
Each party must be allowed an opportunity to present the claims the party has in full.3 Where a party having a fair opportunity to do so fails to offer any evidence, the party cannot later complain that the arbitrators did not hear the party.4
Compared with judicial proceedings, arbitration hearings are relatively informal. rbitrators are not bound by formal rules of procedure5 so long as the hearing is fairly conducted.6 An arbitrator has broad discretion in conducting the hearing and determines what the rules governing the arbitraiton are.7
Because most arbitration agreements provide little guidance with respect to hearings, it may be helpful if the parties' agreement refers to the arbitration rules of an administering organization providing for the proper conduct of the proceedings. Arbitrators are bound to the procedure specified by the arbitration agreement, unless it is in violation of law or public policy.8
With respect to the authority of the arbitrator in an employment arbitration, the Employment Due Process Protocol provides that the arbitrator should be bound by applicable agreements, statuts, regulations and rules of procedure of the designating agency, including the authority to determine the time and place of the hearing, permit reasonable discovery, issue subpoenas, decide arbitrability issues, preserve order and privacy in the hearing adn procedures for post-hearing submissions, and issue an award resolving the submitted dispute.9 The Protocol provides that the arbitrator should be empowered to award whatever relief would be available in court under the law.10