Preparing for the Arbitration Hearing - Dispute Resolution Journal - Vol. 69, No. 4
Jay E. Grenig
Rocco M. Scanza
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Originally from Dispute Resolution Journal
Thorough preparation for the arbitration hearing is absolutely
essential to successful advocacy. No amount of genius or cunning can
substitute for preparation. Preparation means you become an expert
on your case. You develop theories of the case, test them against the
facts, and refine them until everything about the case fits together in a
As part of the preparation it is important for each party to consider
the approach to take in the case. What will be the theory of the case?
What must be proved under that theory? Developing a theory of the
case is a continuing process, one that is affected and changed by new
facts, further research, and thoughtful analysis. It is essential to be
flexible. Tentative theories may be rejected or modified. During case
preparation, the opposing party should not be neglected. Its case must
be analyzed to anticipate where disputes may arise and prepare to
respond. Analyzing the other party’s case helps you see the strengths
and weaknesses of your case.
REVIEWING THE ARBITRATION CLAUSE
Reviewing the arbitration clause in the collective bargaining
agreement is a vital part of preparation for the hearing. During this
preparation, keep the following questions in mind:
- Is the dispute covered by the arbitration clause? Does the contract
limit the type of dispute that can be appealed to arbitration? Could
any of these limitations apply to this dispute? If so, the employer
could argue that the dispute is not “substantively arbitrable.”
Substantive arbitrability of a dispute refers to whether the parties
have agreed to submit an issue to arbitration. That question is
normally resolved by the courts, but an arbitrator may rule on this
question if the labor agreement clearly grants the arbitrator such
authority or the parties agree after the dispute arises to have the
arbitrator resolve arbitrability issues.
- Have all the procedural requirements for bringing an arbitration
proceeding been satisfied? For example, has the grievance been
processed through all the grievance procedure steps? Have time
limits for appealing the grievance to arbitration been met? If these
or similar requirements have not been complied with, the
employer could argue that the dispute is not arbitrable. Procedural
arbitrability refers to whether the procedural requirements of the
labor agreement have been complied with. That question is
normally decided by the arbitrator.
- Are there challenges to procedural or substantive arbitrability
that should be raised as soon as possible before the hearing?
- Is the authority of the arbitrator limited by the arbitration
clause? Limitations on the arbitrator’s authority could affect the
arbitrator’s ability to rule on a particular issue, or to award a
- Have the contractual requirements for the selection of the
arbitrator been satisfied?
- Are there contractual requirements as to when and where the
hearing will be held? Can these be met? If not, the parties should
mutually agree to any extension of time regarding when the
hearing can be held.