When all attempts to resolve a grievance fail the only other available option is to proceed with arbitration. Arbitrations are demanding, complex, lengthy and they cost fair amount of money to all sides involved. 

That is why it is very important to take arbitrations seriously and handle them in the most effective ways. Below are 7 the most important things for winning grievance arbitration.  

1. Get Your Act Together

Before anything ask yourself these questions:

• is it worthwhile
• are  we right in Law
• can  it be  won
• what will be the effect of winning or losing
• what settlement is possible.

Make sure the issue is arbitrable. Go over the facts with foremen and supervisors who were on the spot when the grievance arose. Relate the facts to the Contract.

If you are preparing a written brief for the arbitrator, show exactly what contract clauses apply to the dispute at hand; how the clause may be affected by other parts of the contract, etc.

Questions to ask include:

• What changes have been made in the clause over the years?
• What were the reasons for the changes?
• Has one side tried to obtain a change in negotiations but failed?
• Select reliable witnesses and prepare them well.

2. Develop A Theory Of The Case & Stick To It

3. Select The Right Arbitrator For The Case

The arbitrator may be:

• a lawyer
• an expert in industrial relations
• university professor
• a judge
• or any other knowledgeable person in whose judgment both sides have confidence.

It is better, if possible, to select a local individual with a reputation for fairness and impartiality, and generally known to the community and to the employees. Also you may want ,to select someone with experience as an arbitrator, and particularly with  experience in handling cases in your industry.

Arbitrators themselves, however, criticize employers and unions for their tendency to look for older, established arbitrators for all cases. In the routine case, it may be tempting to select new arbitrators who charge smaller fees since there is a high degree of predictability of the resolution no matter who hears it.

While cost and availability of a proposed arbitrator’s services should be considered along with other factors, a low fee or a fast settlement should not be given greater weight than qualifications for arbitrating the case.

4. Good Presentation Is Half The Battle 

Arbitration proceedings generally are conducted in an informal atmosphere. Over-technicality should be avoided, as also should familiarity with the arbitrator, even if you know him/her.

He/she should be treated with respect and dignity. Within reasonable limits, the other side should be permitted to have its day in court, even if the  evidence strikes you as being technically inadmissible. 

Prepare a brief written summary of your contentions and deliver one copy to the arbitrator and one copy to your opponent at the start of the hearing. Have copies of all documents/evidence that you desire to present and one copy for your opponent (drawings, blueprints, testemonials etc.).

5. Conduct At Hearing

Be on time or early if possible. Tardiness creates a generally bad impression. Do not shout or speak more loudly than necessary at the hearing. Avoid provocative words or epithets. Do not mention old and long-settled frictions or acts or misconduct by your opponent unless clearly relevant to the issue in the present dispute.

Strive for clearness and coherence in your oral presentation; avoid repetition. Do not interrupt statements of the opposing party or the presentation of its evidence. If you intend to call witnesses, have them present in the room or nearby ready for call.

6. Prove Your Case

Use your own witnesses. Don’t try to establish the facts by the testimony of people put on the stand by your opponent.

If you cross-examine your opponent’s witnesses, keep it short. The more questions you ask on cross-examination, the more chance you give a hostile witness to repeat his adverse testimony.

You have the right to ask leading questions when cross-examining hostile witnesses. You also should save time by asking your witnesses leading questions, except at points where disputed facts are involved.

On disputed matters, testimony should be brought out, if possible, by questions that do not suggest the answer. Do not make captious, whimsical, or unnecessary objections to testimony or arguments of the other party. The arbitrator will realize, without repeated mentions on your part, when he is hearing weak testimony such as hearsay and immaterial statements.

A court reporter and a transcript may be desirable where extraordinarily long or highly technical matters are being presented. In such cases, the transcript will help the arbitrator in reviewing the testimony when preparing his award.

7. Be Aware Of The Arbitration Potential Problems

The determination of arbitrability is most often left to the arbitrator. This avoids the delay and expense of a court determination. Moreover, the arbitrator has the industrial relations expertise that the parties contemplated when they provided for arbitration.

The bargaining agreement itself may specifically provide that the arbitrator is to rule on questions of arbitrability as well as the merits of the dispute. This provides the surest method for the parties to minimize court participation or “interference” in the arbitration process. Even if the contract does not state specifically who is to determine arbitrability, the arbitrator generally is regarded as having the authority to rule on arbitrability, particularly if the arbitration clause broadly covers all disputes, differences, and grievances of the parties.

Where a party insists that a dispute is not arbitrable to the point of refusing to participate in any arbitration proceedings, the other party may go to court seeking an order to compel arbitration.

Cost Control 

 In terms of cost control find out the arbitrator’s fee in advance. Find out his policy on billing for travel time. Settle as many facts as possible with your opponent before the hearing starts. Agree, prior to the hearing, on the precise issue to be resolved by the arbitrator. Stating the issue as specifically as possible eliminates unnecessary study and discussion in the hearing and opinion, provides a basis for disallowing testimony and evidence that are not relevant to the precise issue.

This will cut both hearing time and the arbitrator’s study time.

Don’t rent a hotel room for the hearing if it is possible to hold the hearing in the company conference room.  Don’t use a court reporter unless you really need one. Usually a transcript isn’t essential unless the case is extremely complicated or technical.  In the old stand-by type of case, involving discipline, seniority, job classifications, and like issues, consider whether you wouldn’t be just as well off training your own representatives to present the case rather than hire a lawyer.