Integrity, Maturity, Promptness, Patience Said Key Factors In Choosing an ArbitratorDaily Labor Report
June 5, 2002
CHICAGO – Advocates trying to choose an arbitrator to hear a particular case would be better served by investigating the potential arbitrator's integrity, timeliness, patience and sensitivity rather than his or her labor-management biases, two prominent Chicago labor attorneys said May 29.
Marvin Gittler, a labor attorney with the firm Asher, Gittler, Greenfield and D'Alba Ltd., and James C. Franczek, Jr., a management attorney with Franczek Radelet, said unions and employers are often fooled when choosing an individual to arbitrate a particular case. Too many advocates, they said, focus on arbitrators' labor or management credentials and "fuzzy data" collected by rating organizations suggesting a labor or management bias.
Franczek and Gittler spoke during a panel discussion about choosing arbitrators during the Eleventh National Labor-Management Conference sponsored by the Federal Mediation and Conciliation Service.
Both men advised parties engaged in such searches to focus on a wide range of personal and professional qualities that would suggest the arbitrator's ability to render a fair and thoughtful result. In most cases, Gittler and Franczek said, arbitrators possessing strong personal and professional qualities better serve their clients than arbitrators that look good on paper from a labor-management perspective.
"I not only have respect, but actually affection and admiration, for a good number of labor arbitrators coming out of union backgrounds," Franczek said. "So don't go just on presumptions. They can be as tough in a discharge or discipline case as anybody to come out of a management background because they understand what's going on in that kind of environment."
Gittler said that while many lawyers and former judges act as arbitrators, there is no single set of qualifications for this duty. Individuals from a wide range of professional backgrounds are offering arbitration services including accountants, academics, economists, and ministers. In light of this diversity, Gittler said advocates would be better off studying the proposed arbitrator's professional demeanor rather than his or her professional background. In this regard, he advised advocates to try to determine whether the arbitrator listens well, makes the parties feel comfortable, and can control aggressive lawyering during the arbitration.
Impartiality is another critical factor to consider. This quality, Gittler said, has less to do with an individual's background than his or her willingness to attentively and respectfully listen to both sides of the case and make a decision based on the facts presented. In a similar vein, he suggested that advocates consider the prospective arbitrator's integrity and maturity of judgment.
Speaking as a labor attorney, Gittler said he also looks at the prospective arbitrator's ability to be sensitive to his clients. Gittler noted that arbitrators have to realize that the aggrieved party, in most cases, is the only person in the room with no previous experience with arbitration. Arbitrators who exhibit arrogant or intolerant attitudes toward the parties will alienate the grievant and sow mistrust into the process.
Franczek noted that different types of cases require different types of arbitrators. He said some arbitrators have a strong background in disciplinary situations, so they should not be relied on to render a decision in a complex contract interpretation case. Others have focused their careers on the industrial setting, so their skills may not be appropriate in a dispute concerning public sector employees such as firemen, police officers and prison guards.
Franczek also encouraged advocates to find an arbitrator capable of delivering a timely and well-written decision. He noted that a growing number of arbitrators are developing reputations for taking too long to render decisions, denying both the grievant and the employer closure and a feeling that justice has been delivered. Arbitrators capable of delivering well-written and thoughtful decisions should also be pursued. Many times even a winning decision, he said, offers clients little satisfaction, if they feel the arbitrator did not understand the issues and could not articulate a viable set of arguments for rendering that decision.
"Arbitrators really have a responsibility to make themselves understood," he said.
Franczek encouraged labor and management lawyers searching for arbitrators to use the typical sources available to them including the R.C. Simpson's Arbitrator Qualification Reports, the Labor Arbitration Information Service and the LRP Arbitration Database. Lists from the major arbitration associations and recommendations from professional colleagues are also valuable. Franczek stressed, however, that such information should be viewed as an initial step in the search for an appropriate arbitrator. Advocates really need to consider the broader issues pointing to an arbitrator's personal and professional qualifications.