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Fatal Error & Sparks of Genius in Labor Arbitration Advocacy - Dispute Resolution Journal - Vol. 59, No. 1

Author(s): 
Douglas E. Ray
Patricia Thomas Bittel
Page Count: 
7 pages
Published: 
February, 2004
Practice Areas: 
Labor,
Practice & Procedure,
Advocacy,
Hearing
Author Detail: 

Douglas E. Ray is dean and professor of law at the Widener University School of Law, in Wilmington, Del., and Harrisburg, Pa. 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 28 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.

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Description: 

Originally from Dispute Resolution Journal

In this practical article, two highly experienced labor arbitrators describe strategies for effective advocacy in labor arbitration and highlight pitfalls for the unwary advocate.

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.

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.

The advocate will not do the client a service if his or her only definition of winning is obtaining an arbitral decision in the client’s favor. Winning can have many meanings. A settlement is often the better choice in a labor dispute. One reason is that there is always a risk of losing, and in some cases, that risk may be too great. Another reason is that agreements the parties reach themselves tend to preserve their relationship. Some arbitration proceedings are so acrimonious that they can reopen old wounds. Even though the employer and the grievant are involved in a labor arbitration, the relationship between the employer and its union will continue during and after the proceeding. Accordingly, the advocates should temper any inclination to take a hostile approach.