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Doing Well by Doing Good

United States and Canadian perspectives on ethical issues

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Arbitrator Goldberg accepted appointment as an arbitrator of two police discharge cases, each of which had a voluminous history of acrimony and litigiousness by the grievants against their employer, and also against their union (the latter including DFR claims). Arbitrator Goldberg ruled against each grievant, and each grievant filed a motion to overturn the ruling …

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The author addresses whether arbitrators face improper conflicts of interest when trying to please repeat-player clients or when serving as party-appointed arbitrator advocates.

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Applying, literally, a state statutory definition of bias based upon nondisclosure, the California appellate court vacated an award by Arbitrator Kagel, even though no actual bias was shown. The Court made clear that its ruling would not apply to collective bargaining cases but Arbitrator Kagel advises that disclosure be made of prior services rendered as …

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A survey — of NAA members, management attorney advocates in the U.S. and Canada, and union attorney advocates — the purpose of which is to determine the factors that go into the selection of arbitrators by the parties. The survey is followed by an articles on how union advocates and management advocates, respectively, select arbitrators.

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Arbitrator Mittenthal observes the vast discretion that arbitrators possess, and offers advice as to its use. He recommends a pragmatic, common sense approach based upon thoughtfulness and fair play, and that arbitrators intervene only when the parties fail to make a coherent presentation, to behave in a reasonable manner, or to furnish sufficient information for …

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Whither arbitration?

Richard Mittenthal traces the evolution of labor arbitration over the past 50 years, from the model described by George Taylor – as a substitute for strike, with the arbitrator serving as a problem-solver as well as a judge – to the current formal and legalistic relationship, wedded to case precedent. The causes of this evolution …

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A review of cases overturned on the basis of the evident partiality of the arbitrator. The author emphasizes the duty to disclose to the parties any current or past relationships before accepting an appointment, and that any doubts should be resolved in favor of disclosure.

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The author poses questions about the direction of the Academy’s future, with special consideration to the process of securing a pool of candidates, training and developing the candidates, and selecting members from among the candidates. Attention is given also to the enforcement of the Code on existing members, and members’ continuing education.

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Building the evidence record: The bounds of “arbitral advocacy”

An examination of arbitral discretion in the context of building the evidence record and controlling the hearing: techniques, demeanor, temperament and style with particular emphasis on gradations of arbitral involvement in building the evidence record. Arbitrator Gentile considers the boundaries of arbitral discretion and arbitral activism; Atty. Marcus cautions against “arbitral advocacy”; Arbitrator Nicolau states …

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