Fatal Error and Sparks of Genius in Labor Arbitration Advocacy - Chapter 14 - AAA Handbook on Labor Arbitration & ADR, 3rd Edition
Douglas E. Ray is Professor of law at St. Thomas University School of Law. He served as Dean of St. Thomas Law from 2010-2014, Dean of the University of Toledo College of Law (2006-2010), Dean of the Widener University School of Law, and Vice President of Widener University (1999-2005). A member of the National Academy of Arbitrators, Dean Ray is also the author of “On Writing the Post-Arbitration Brief,” vol. 42, no. 4 Arbitration Journal (1992), and other articles on labor law and labor arbitration. He is also the co-author of Understanding Labor Law (Lexis) and Labor-Management Relations: Strikes, Lockouts and Boycotts (West).
Patricia Thomas Bittel is a full-time Arbitrator and Mediator, primarily of labor and employment disputes. A former practicing attorney, she has 30 years’ experience in employment and labor law. Ms. Bittel is a past neutral Co-chair of the ABA Committee on ADR in Labor and Employment Law, and currently serves on the Board of Governors of the National Academy of Arbitrators.
FATAL ERROR AND SPARKS OF GENIUS IN LABOR ARBITRATION ADVOCACY
Douglas E. Ray and Patricia Thomas Bittel
In many arbitration hearings there are pivotal moments—both “sparks of genius” and “fatal errors”—that can affect the outcome of the case or damage future relations between the employer, the union and the employees it represents. These moments generally are not the result of spontaneous brilliance or sudden bad judgment. Rather, the winning “spark of genius” is most often the result of the advocate’s careful preparation and planning begun long before the hearing, while the fatal error is usually due to the advocate’s lack of planning or a misunderstanding of the role labor arbitration plays in our system of industrial governance. Here we share our observations of good and bad advocacy.
II. The Big Picture
To begin with, the advocate who undertakes to represent a party in a labor arbitration should understand the difference between this type of arbitration and other types of adversarial dispute resolution, such as litigation. Because of the parties’ ongoing relationship, there is always more at stake than the outcome of an individual grievance.