Questions about the arbitration hearing process are often asked of the arbitrator, particularity by those who are reasonably new to the process.  The following provides a short answer, from the perspective of Arbitrator Williams and from the point of view of the arbitration process, to those questions which are frequently asked.

Does the arbitrator want a pre-hearing brief?


My view of the arbitration process is that it works best when the Arbitrator arrives for the hearing fresh to the issue and the parties' positions.  I believe that there are two primary advantages to not receiving pre-hearing material, either in the form of a brief or other submissions.  First, I see an advantage of getting the whole story at the hearing as opposed to getting part of the story through a pre-hearing submission and the rest of the story at the hearing.  In my experience, receiving the whole story during the hearing makes it easier to keep an open mind to the information that is being provided.  Second, the arbitration process is better served when all of the evidence and argument provided by an advocate is received by the Arbitrator in the presence of the other party.  Thus, a pre-hearing brief is, in most cases, unwanted and at times inappropriate.
However, a pre-hearing statement presented at the start of the hearing is acceptable, but not requested. 
Of course, there are exceptions to this general principle.  Probably, the most obvious is where the parties desire a ruling prior to the hearing.  There also may be those unusual cases which have a unique dimension, such as a particularly complex legal framework.  In such cases, a pre-hearing submission might be extremely helpful.  Thus, questions about a pre-hearing submission can be directed to the Arbitrator by way of e-mail (tim@arbitratorwilliams.com). 

How do I get a subpoena signed?


There are three steps to getting a subpoena signed:

  • Prepare the Subpoena

This website contains sample subpoena forms that can be used for an arbitration hearing.  Otherwise, the parties should feel free to use the subpoena form that best works for them.  Prepare the subpoena as accurately as possible.  I will sign a blank subpoena if I am convinced that there is still a need to determine the person who will make the best witness.  

  • Send Subpoena to Arbitrator

The parties can mail the subpoena to me for my signature if there is sufficient time to sign it and send it back.  Otherwise, the subpoena can be faxed to me.  The primary fax number is 503-222-6874.  If the subpoena is faxed to me, it will be signed and returned via fax.  

  • Signing the Subpoena

My practice has always been to be very liberal with signing a subpoena.  However, in the event that the subpoena is challenged in any way, I will ask the parties to provide argument as to the proper course of action.  Based on this argument I will render a decision as to the appropriateness of the subpoena.  
Each party is expected to serve their own subpoenas.

 

Who has the burden of proof?


There is a practice widely used by arbitrators of grievance disputes related to the burden of proof.  Since the employer makes the decision to impose discipline or discharge on an employee, the burden of establishing that this decision was for good or just cause is assigned to the employer (burden of proof).  This arbitrator does not ever use the level of proof applied in criminal proceedings: beyond a reasonable doubt.   Rather, for a discipline or discharge case that involves allegations attacking the character of the grievant, the standard is clear and convincing.  For all other grievances, including discharge and discipline that is not character based, the standard is a preponderance of the evidence.  The following should add additional insight:

  • The burden of rebuttal and the burden of persuasion are sometimes confused with the concept of burden of proof.  One easy way to distinguish between the burden of proof and the other two is that the burden of proof never changes during a proceeding.  Moreover, in the event that the arbitrator finds that the cases of the two parties are equal in value, the party with the burden of proof would lose the decision.  In other words, the party with the burden of proof, to be awarded a favorable decision, must prevail based on the standard of proof that is applied. 
  • A burden of rebuttal is created when either party presents a compelling argument.  Thus, the stronger the party's argument, the greater the burden of rebuttal on the other party.   
  • As to the burden of persuasion, the party that raises an issue carries the burden to provide persuasive evidence regarding that issue.  No rebuttal is necessary if there is insufficient persuasive evidence to give any support to the issue raised. 

  • The party without the burden of proof can ask for and receive a directed verdict in the event that the party with the burden of proof fails to provide an opening case sufficient to force a burden of rebuttal.  However, in thirty years of practice, this arbitrator has issued only one directed verdict.  

 

What does it mean to “voir dire” the witness,
and why should an advocate do so?

Witnesses are used to introduce evidence.  There are times when the opposing party will be uncertain as to whether to object to the admission of the evidence.  In such a case, the advocate might want to request of the arbitrator the right to voir dire the witness.  Technically, the purpose of a voir dire is to conduct a preliminary examination to test the competence of a witness or the evidence.  For example, if a witness is being asked to provide information as to what went on at a certain meeting, the opposing advocate might want to voir dire and determine whether the witness was present during the meeting or what portion of the meeting the witness attended.  This will allow the advocate to know whether or not to raise an objection to the testimony. 

The words frequently used by an advocate to request the right of voir dire usually goes something like this: “Mr. Arbitrator, may I voir dire the witness in lieu of an objection?”