By JEFFREY T. ZAINO | 0 comments
Regardless of the facts of your case or skills as an advocate, you never want to be in a position of alienating your arbitrator. In the 1970s, the late Lewis M. Gill, a highly respected labor arbitrator and past president of the National Academy of Arbitrators, gave a speech on the 10 ways to alienate the arbitrator and lose your case. The speech was so well-received that the American Arbitration Association, for decades, has used excerpts of it in training and educational materials for labor-management advocates.
The "10 ways" have certainly held true over time and apply in 2012 as they did decades ago. I, therefore, offer a reprint summary of Arbitrator Gill's speech, 10 Ways to Alienate Your Arbitrator and Lose Your Case, for this generation of labor-management advocates:
1. Always be late for the hearing. The best plan is to stroll in at least 35 minutes late. Do not offer any explanation.
2. Start off with a few ill-founded technical objections. Claim that the demand for arbitration is in imperfect form, or that Step Three in the grievance procedure was bypassed, or demand that the other side have the burden of presenting its case first. Be persistent-continue arguing the point even though the arbitrator indicates impatience to get on with the hearings.
3. Make it clear that you distrust the arbitrator. An occasional hostile or suspicious glance is effective, along with a sigh of resignation whenever he questions some point you are making.
4. Object to the introduction of most of your opponent's evidence. Cite the law of evidence at length, preferably incorrectly. If the arbitrator overrules you, glare balefully and reserve your right to appeal to the courts.
5. Interrupt your opponent frequently in mid-sentence. Complain angrily to the arbitrator if your opponent does the same to you.
6. When cross-examining your opponent's witness, use a sneering tone. Demand "yes" or "no" answers. Imagine you are on television-put on a great dramatic show.
7. Never admit that anything the opposition says is true. Make no concessions, even minor points.
8. Cover the same ground several times. Develop irrelevant points at length. Demand recesses to send to the plant for additional witnesses to corroborate these points further.
9. When presenting exhibits, have them in as a inconvenient a form as possible. Don't prepare summaries of bulky records-just dump them in a raw form into the arbitrator's lap. Provide no copies for the other side.
10. Be sure not to state a clear theory of your case. Do not analyze the issues at the beginning or end of the hearing; spend the time in a denunciation of the motives of your opponent.
We are fortunate that labor arbitrators are held to the highest ethical standards as required by the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, and it is unethical for an arbitrator to retaliate against a party, let alone on a substantive issue due to poor behavior during the proceedings. The parties and advocates, however, should never alienate the arbitrator.