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.
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.
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 …
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.
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.