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The Role of the Arbitrator, If Any, Prior to the Hearing – a Panel Discussion

The panelists agree that an arbitrator can facilitate pre-hearing matters, such as the production of documents, definition of the issues, and exploring settlement. However, they also agree that the arbitrator should be circumspect, given his/her lack of knowledge of the case, and should conduct any such efforts openly, and with attention given to due process.

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NAA President Kagel warns of the increasingly legalistic environment for labor arbitration caused by the spill-over of practices from the courts and from private commercial dispute resolution (including employment disputes). And he offers advise as to what arbitrators can do to slow the trend.

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The author’s thesis is that the parties and the arbitrator should develop pre-hearing processes that suit their styles and the situations they face, rather than to adhere to custom . It is suggested that the arbitrator begin the hearing with a description of the hearing process, and then inquire about settlement possibilities. The author discusses …

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The author discusses how he, as a management attorney, likes to have four factors addressed prior to the hearing: 1. discovery, 2. issue framing including remedy, 3. joinder or exclusion of related issues pending in other forums, and 4. related problems involving arbitrability.

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The author views many pre-hearing motions by management counsel as attempts to control the hearing or its outcome, or to support its subsequent appeal. He concludes that the best way to control pre-hearing issues is for the parties to resolve them.

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Discussion of means of framing the issues and proposed remedies before arbitration, and the costs of failure to do so

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Problems of proof in the arbitration process: Report of the New York Tripartite Committee

Discussion of hearing procedures and rules of evidence. [See also the transcript of the open discussion, 1966 page 305.]

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Problems of proof in the arbitration process: Report of the Chicago Area Tripartite Committee

A discussion of hearing procedures and the rules of evidence. [See also the transcript of the open discussion, 1966 page 110.]

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