Guidelines for Standards of Professional Responsibility for Arbitrators in Mandatory Employment Arbitration
Arbitration is commonly used to resolve employment disputes. Employment arbitration is a significant part of the system of justice on which our society relies for a fair determination of legal rights. All persons who act as employment arbitrators therefore undertake serious responsibilities to the public as well as to the parties. Those responsibilities include important ethical obligations. Arbitrators occupy a position of trust in relation both to the parties they serve and to the administrative agencies handling their cases.
SCOPE OF THE GUIDELINES
These Guidelines are a privately developed set of standards of professional conduct for arbitrators engaged in the resolution of disputes arising under an agreement to arbitrate pursuant to an employer-promulgated arbitration plan or procedure where the arbitration of employment-related disputes is a condition of employment.
The word “arbitrator” as used in the Guidelines applies to any individual, irrespective of specific title, who serves in an impartial capacity in a covered arbitration dispute procedure that confers authority to decide issues or to make formal recommendations. The Guidelines are not designed to apply to mediation, conciliation, or other procedures in which the third party is not authorized in advance to make decisions or recommendations, except as specifically provided for in Section 2.E. These Guidelines do not apply to partisan representatives on tripartite boards. The Guidelines do not supersede applicable laws or arbitration rules of an administrative agency to which the parties have agreed, and should be read in conjunction with other rules of ethics. They do not establish new or additional grounds for judicial review of arbitration awards. The Guidelines do not authorize or permit any organization adopting or applying the Guidelines, or any internal tribunal of such an organization, to review arbitration awards on their merits.
SECTION 1. ARBITRATOR'S QUALIFICATIONS AND RESPONSIBILITIES TO THE PROFESSION
A. General Qualifications
impartiality, and general competence in employment law and management of employment
faithfully and with good judgment at every stage of the arbitration process.
issue in every case.
B. Qualifications for Special Cases
competence, the arbitrator must decline appointment, withdraw, or seek and obtain approval for technical assistance.
C. Responsibilites to the Profession
provide effective service to the parties.
developments that are relevant to the arbitrator’s field of practice.
SECTION 2. RESPONSIBILITIES TO THE PARTIES
A. Recognition of Diversity in Arbitration Provisions
agreement under which the arbitrator serves.
to try to discern any attempt by any party to use arbitration for an improper purpose. The arbitrator must not approve, consent to, or participate in any way in such an attempt.
particular vigilance to ensure procedural fairness and to protect the integrity and reputation of employment arbitration. Arbitrators who undertake such cases must be sure that their powers and the procedures to be followed satisfy minimum standards of due process and fairness.
due process, the arbitrator must insist upon an agreed correction as a condition of service and, failing agreement, must decline the appointment and withdraw from any further participation.
applicable law, agency rules, or agreement of the parties.
accepting appointments or hearing cases where one party is not represented.
representing either party and explain the difference between the arbitrator's role as a third-party neutral and a lawyer's or advocate’s role as one who represents a client. While the arbitrator may not assist either party in the presentation of its case, the arbitrator may explain the arbitration process to an unrepresented party.
or to an appointing agency administering the case, any facts or circumstances that might raise a reasonable doubt about the arbitrator’s independence and impartiality. The arbitrator must also disclose any other matters required by law or by rules that are applicable to the proceeding.
interests related to a party, representative, known witness, and other arbitrators in the proceeding.
including appointment as an arbitrator or other dispute-resolution neutral.
consultant to employers, employees, unions, or organizations of employers or employees.
arbitrator must disclose any relationships with that attorney’s or consultant’s firm.
in the field, but must disclose any relationship with a representative or other arbitration participant that might raise a reasonable doubt about the arbitrator’s impartiality.
that members of the arbitrator’s family or household have with any participants.
of the relationship.
whether the arbitrator’s selection was a joint appointment, an appointment by a neutral designating agency or government body, an appointment pursuant to a statute, an appointment in a compulsory arbitration arrangement from a panel unilaterally formed by one of the parties, or an appointment directly by one party. If the arbitrator discovers that the appointment was from a panel unilaterally formed by one of the parties in a compulsory arbitration arrangement, or from an appointment directly by one party, the arbitrator must decline the appointment.
in writing to all representatives or to unrepresented parties, and must afford parties a reasonable period of time to object to the appointment before taking further action on the case.
even if all parties waive objection.
made within the time provided for an objection after the disclosure, without need for a party to provide
a reason, or (2) if, at any time during the proceeding, all parties request an arbitrator to withdraw.
throughout the arbitration proceeding if new facts or circumstances, including selection to serve as an arbitrator in another case with one of the parties or representatives, come to the attention or recollection of the arbitrator.
reasonably required to receive any objection and to determine whether the facts and circumstances compel the arbitrator’s withdrawal from further service.
arbitrator recusal or removal. Applicable law or procedures for treating arbitrator challenges established by an administrative agency handling the case must be followed. Otherwise, the arbitrator must grant the motion if there is sufficient evidence of a lack of independence or impartiality, or other reasonable grounds to require withdrawal.
C. Privacy of Proceedings and Publication of Awards
confidential unless all parties waive this requirement or applicable law permits or requires disclosure.
or their representatives when the parties agree or when an applicable law requires or permits.
involved unless the arbitrator first obtains the consent of all parties or unless the identity of the parties and details of the case are sufficiently obscured to eliminate any realistic probability of identification. An arbitrator need not obtain advance consent when discussing with another arbitrator issues arising in a case. The arbitrator acting in the case retains sole responsibility for the decision and the discussion must remain confidential. Similarly, an arbitrator who teaches arbitration in a college or university or in a continuing education program need not obtain advance consent to discuss issues arising in a case provided the arbitrator does not disclose any identifying information.
An arbitrator may ask the parties for consent to publish only at or after the time the award is issued. The arbitrator may state in writing to each party that failure to answer the inquiry within 30 days will be considered an implied consent to publish the award with all identifying information redacted.
require exceptions to the above noted principles of privacy.
jurisdiction conferred by an agreement, by any other submission under which the arbitrator serves, and by any settlement of some or all of the issues in a case at any stage of the proceedings.
E. Mediation by an Arbitrator
engage in a mediation/arbitration process.
clear understanding of
is not resolved.
F. Delegation and Use of Assistants
without consent of the parties.
assistant for research, clerical duties, or preliminary drafting under the direction of the arbitrator.
G. Consent Awards
award agreed to by the parties, provided that the arbitrator is satisfied that all parties knowingly agreed to its terms.
H. Avoidance of Delay
commitments will be fulfilled in a timely manner.
any administrative agency and provide a reasonable estimate of any additional time required.
agency involved in avoiding delays.
schedule a hearing as soon as the parties wish.
limits for an award, as stipulated in the agreement of the parties, or as provided by regulation of an administrative agency, or as otherwise agreed.
arbitrator must seek an extension of time from the parties.
I. Fees and Expenses
reasonable in light of the nature of the case.
and expenses and must make an accounting to the parties or to an involved administrative agency upon request.
writing, with all parties and any administrative agency, the basis for any charges or expenses, including any cancellation fee, compensation in the event of withdrawal, and compensation for study and preparation time.
agency, the arbitrator must communicate about compensation through that agency. In proceedings without an administrative agency, the arbitrator must copy all parties on communications about compensation.
method of calculating the fee, or any combination thereof. The method for calculating the fee must be disclosed to the parties at or before acceptance of the appointment.
allocated for the hearing. An arbitrator may specify a per diem for a hearing that applies regardless
of the length of the hearing.
other method, must not exceed actual time spent.
incurred in the case. When time or expenses are involved for two or more sets of parties on the same day or trip, the arbitrator must prorate such time or expenses appropriately. An arbitrator may, without violating this provision, stipulate in advance a minimum charge for a hearing.
case as a condition of going forward with the arbitration. The arbitrator must safeguard the parties’ deposits and use them only for legitimate fees and expenses.
J. External Law and Independent Research
whenever public law is at issue in a case.
case without advising the parties about such research or the results of any such research, so long as the arbitrator does not decide the case on the basis of a rationale or position that no party has presented or argued.
rationale or position not presented or argued by any party, the arbitrator must first give all parties an opportunity to respond.
SECTION 3. RESPONSIBILITIES TO ADMINISTRATIVE AGENCIES
A. General Responsibilities
agency concerning qualifications, availability, and all other pertinent matters.
cases referred by that agency, provided such rules are consistent with due process and public law.
B. Improper Influence
improper means, including gifts or other inducements to agency personnel.
SECTION 4. PREHEARING CONDUCT
A. General Principles
determine procedural matters so that the hearing can proceed without unnecessary obstacles. When an administrative agency handles some or all aspects of the arrangements prior to a hearing, the arbitrator will only become involved as appropriate and necessary.
party must be made available to all parties.
deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.
SECTION 5. HEARING CONDUCT
A. General Principles
sufficient opportunity to present their evidence and arguments.
various types of hearing procedures desired by the parties.
that party from putting forward its case fairly and adequately. An arbitrator may ask questions to clarify the record and may request further information when necessary to ensure the arbitrator’s understanding of the evidence.
B. Ex Parte Hearings
consider relevant legal, contractual, and other pertinent circumstances.
absent party has been given adequate notice of the time, place, and purposes of the hearing, and must try to contact the missing party.
the absent party of good cause for failure to appear.
C. Bench Decisions; Full or Summary Awards and Opinions
parties expect a bench decision at the conclusion of the hearing, the arbitrator must comply with that understanding unless all parties agree otherwise.
the appointment of their desire for a bench decision, the arbitrator may decline to issue a bench decision.
in extraordinary circumstances.
desire for either a full written award and opinion or a summary written award and opinion within a stated time period, the arbitrator must comply with the understanding unless all parties agree otherwise.
SECTION 6. POST-HEARING CONDUCT
A. Post-Hearing Briefs and Submissions
nonfiling of post-hearing briefs or submissions.
been provided to the other party or parties.
B. Award; Disclosure of Terms
and legal record as is feasible.
simultaneous issuance to all parties. An arbitrator must not explore possible alternative awards unilaterally with one party, unless all parties so agree.
SECTION 7. POST-AWARD CONDUCT
A. Clarification or Interpretation of Awards
parties. When all parties consent to a clarification or interpretation, the arbitrator must afford all parties an opportunity to be heard.
miscalculation of figures, an evident material mistake in the description of any person, thing, or property referred to in the award, or an imperfection in a matter of form not affecting the merits of the controversy, and may make corrections required by law, provided all parties have an opportunity to be heard.
B. Retaining Remedial Jurisdiction
questions that may arise over the interpretation, application, or implementation of a remedy. Such retained jurisdiction does not extend to any other part of the award. Any party may request exercise of such retained jurisdiction.
C. Enforcement of Award