Pre-hearing preparation—The Arbitration Boot Camp

Pre-hearing preparation is going to be your key to success at the arbitration hearing.

And you've got three things to work with: Facts. Rules. Your own skill.

Now you may have your own way of preparing for a hearing, and I'm just going to give you a few ideas.

Let's talk about the rules. In every case you're going to have some rules. Maybe it's a statute, a government regulation, a collective bargaining agreement, employer’s rules of conduct, past practice, something else. And the question ordinarily in an arbitration hearing is—Was there a violation of that rule? Or the other side is going to be trying to show that that rule was not violated.

So you want to take a very careful look at whatever the rules are that you're dealing with.

Tease out the elements. Look for the nouns. Look for the verbs. Look for the adjectives.

Once you have that little list made, take a look at your facts. Look to see what did happen. Look to see what did not happen. Look to see what actually happened but it happened in a different way than what the other side is trying to demonstrate.

Then take the elements that you've got from your rules, and put them side by side with the facts that you're going to want to prove. So you're combining the elements with the facts. Element/Fact, Element/Fact, Element/Fact.

And what are your facts? These are your witnesses. These are your papers. They’re documents. They’re emails, printouts of text messages, whatever documents you might have.

And when you're looking at those facts, be sure that you are very clear on what your weak points are. Don't ignore your weak points. They're going to bring it up. And don't ignore their strong points. So: your strong points, their strong points, your weak points, their weak points. Make sure you have a good idea what those are.

Then? Most people will say you should develop a theme — something you can tell your story around, because really that's what you're doing at the hearing—telling a story. An employer might say “well, you know this employee just kept doing these things over and over and finally this was the straw that broke the camel's back.” Or they might say “good employee but did a very bad thing.” The union side might be saying, “you know, progressive discipline is the bedrock of the disciplinary system, and progressive discipline was not followed here.” Or they might say “the investigation was very sloppy and the employer rushed to judgment.” So have a theme, and you tell your story around that theme.

Before the hearing get your exhibits in order. Make sure you have four copies: yourself, the other side, the arbitrator, and the witness. Put those together in some logical order. Maybe they're batched by witness. Maybe they're in chronological order. Maybe they're loose. Maybe they're three-hole punched and put into a binder.

And then figure out the order in which you're going to have your witnesses testify so the story gets told in the way you want it told.

And don't forget to spend some time before the hearing preparing your cross-examination.

More from The Arbitration Boot Camp: www.RossRunkel.com/ABC

Selecting your arbitrator—The Arbitration Boot Camp

The first thing you want to do is figure out what it is that YOU want in an arbitrator, which is not necessarily the same thing as what other people want in an arbitrator. I will mention several things.

One is you probably want an arbitrator who will conduct an orderly hearing. But what does that really mean? Do you want an arbitrator who is active, and interjects in the case and moves things around? Or do you want an arbitrator who is passive and really just sits and listens? Most arbitrators are somewhere in between. Myself, I like to sit and listen, but I will ask questions if I don't understand what's going on or if there are words or phrases or acronyms that are being used that don't make sense to me.

You want an arbitrator who has intelligence. Now, that's not just IQ.
You want emotional intelligence.
You want common sense, which is after all is a form of intelligence.

You probably want an arbitrator who is timely. Getting the hearing scheduled, answering emails, getting the decision completed. All of these things being done on time without delay.

You probably want an arbitrator who writes clear decisions. You want to know how the arbitrator got from A to B to reach a conclusion. And you want to have the award be clear, so you know what it is that everybody has to do.

Your main source is going to be the arbitrator's resume which you get from AAA or from FMCS or from some other agency. And you want to read that carefully. The thing I would be very careful about reading in that resume is whether that arbitrator is on permanent panels. What that tells you is that other parties who have used that arbitrator have both decided on both sides that they want this arbitrator to decide more of their cases. So that arbitrator has already been vetted by other people which tells you a great deal about their acceptability.

Of course, you want to use the World Wide Web. You want to go to Google, ChatGPT, Facebook, LinkedIn. You're looking for whether the arbitrator has their own website. Can you find decisions that the arbitrator has written? And can you find articles that have been written? Can you find out their activities?

And my very favorite source is going to be your telephone. I want you to get on the phone and call other people who have used arbitrators and see if they know something that you can't find out from any other source.

More from The Arbitration Boot Camp: www.RossRunkel.com/ABC

Sexual harassment by a customer

Sexual harassment by a customer got a dramatically different analysis by the 6th Circuit in Bivens v. Zep (6th Cir 08/08/2025) [PDF], rejecting the long-standing approach by the EEOC and other Circuit courts.

Dorothy Bivens was harassed by a customer. She wanted to hold her employer liable. The court held that in order to do so she needed to prove the employer’s intent—not mere negligence.

The customer was not the employer's agent, and there was no showing that the employer intended harassment to occur.

The 6th Circuit is an outlier on this issue, but you can bet that employers will urge this approach in other jurisdictions.

FAA won't preempt arbitration fee payment statute

The California Supreme Court (5-2) did some fancy maneuvering to save Code of Civil Procedure section 1281.98 from being preempted by the Federal Arbitration Act in Hohenshelt v. Superior Court (08/11/2025) [PDF]

That section governs the payment of fees in employment and consumer arbitrations. If the drafter does not pay its arbitration fees on time, then it waives the right to arbitrate.

The court “properly construed” the statute so it does not apply where nonpayment of fees results from a good faith mistake, inadvertence, or other excusable neglect.

The court declared that—as now interpreted—the statute does not
- deviate from generally applicable state law contract principles.
- disfavor arbitration or interfere with fundamental attributes of arbitration.
- invent special, arbitration-preferring procedural rules.

I’m not convinced. Neither are the two dissenters, who argued that section 1281.98 singles out arbitration contracts for disfavored treatment, and thus violates the equal treatment principle and is preempted by the FAA.

NLRB deferral to arbitration

NLRB deferral to arbitration gets a boost under the GC’s recent Memo.
Two points:
1. “in all investigations, Regions are instructed to first consider whether the charge allegations are appropriate for deferral pursuant to the criteria set forth in Dubo Manufacturing Corporation.”
2. “Regions will no longer conduct quarterly status checks.”

These are somewhat less than dramatic changes, but the first one is bound to increase the number of cases deferred to arbitration.

General Counsel Memo: Guidance for Deferring Unfair Labor Practice Cases (08/07/2025) [PDF].

AFGE v. Trump update

AFGE v. Trump (9th Cir 08/01/2015) [PDF]: The court granted an emergency stay of the district court’s preliminary injunction of Executive Order 14,251, Exclusions From Federal Labor-Management Relations Programs, which would withdraw collective bargaining rights for government workers in nearly two dozen agencies.

The court focused on the unions’ claim that the EO was 1st amendment retaliation.

The court said, “We conclude the government has shown that it is likely to succeed on the merits of the retaliation claim. Even assuming that Plaintiffs have made out a prima facie claim of retaliation, on this record the government has shown that the President would have taken the same action even in the absence of the protected conduct.”

Federal agency RIFs will proceed

The Supreme Court is allowing implementation of an executive order calling for mass reductions in the federal workforce—for now, lifting a district court order that prohibited the government from carrying out the executive order while appeals continue.

Here's the money quote: "Because the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful—and because the other factors bearing on whether to grant a stay are satisfied— we grant the application."

Trump v. AFGE (07/08/2025) [PDF]. The order was unsigned, with only one dissent.

2025 US Supreme Court roundup

Here is my 2025 US Supreme Court roundup video.
Click the image.
Also on YouTube: https://youtu.be/eR1dkxdnUOw

Tips on arbitration post-hearing briefs———>

The biggest mistake I see in post-hearing briefs is ignoring their strong points and ignoring your weak points. You know they're going to bring these up. You ignore these at your peril. Bring them up yourself.

I'm going to give you seven pointers:

First — Start your brief with a one-paragraph summary that gives a nutshell of your whole case. One paragraph.

Second — Remember your theme. You developed a theme for the hearing. So I want to see that theme developed throughout the brief.

Third — You're always dealing with rules: a collective bargaining agreement, a statute, government regulation, employer’s past practice. And these rules have elements: the verbs, the nouns, the adjectives.

Fourth — Tease out those elements and tie each one to a fact.
Element+Fact. Element+Fact

Fifth — Use headings to separate out the parts of your brief.

Sixth — If your brief is long, include a table of contents at the beginning, but after your one-paragraph summary.

Seventh — Close your brief by telling the arbitrator exactly what you want the arbitrator to do. Do not leave that to chance.

Retiree cannot recover under the Americans with Disabilities Act

With five separate opinions, the US Supreme Court (8-1) holds that a retiree cannot recover under the Americans with Disabilities Act (ADA) because a plaintiff must plead and prove that she held or desired a job, and could perform its essential functions with or without reasonable accommodation, at the time of an employer’s alleged act of disability-based discrimination. Stanley v. City of Stanford (US Supreme Ct 06/20/2025 [PDF].

Karyn Stanley claimed disability discrimination because the employer changed its retirement benefits—retirees with 25 years of service received coverage until age 65, but she had less than 25 years of service, so she received only 24 months of health insurance.

Under the ADA definitions, she was not a “qualified individual” because she didn’t have a job and was not seeking a job, and was not able to do the job after retiring.

Tips on arbitration cross examination———>

There are two reasons to do cross-examination. One I call constructive. The other I call destructive.

Constructive cross-examination (sometimes called hitchhiking) is where you're basically going to use the other side's witness as if they were your witness. That witness has things you need to know or the arbitrator needs to know. And you simply ask a series of questions to get that information from the witness.

The other one is called destructive cross-examination, sometimes called impeachment, where you're trying to discredit the witness. Maybe you can show that witness is a liar. That's difficult and infrequent but you can show sometimes the witness has a poor memory by asking a series of questions and see if they remember, or you can show bias by showing they’re related to somebody or they socialize with somebody. You don't come right out and say “Oh, well, you must be biased.” No.  You just let the arbitrator form the arbitrator's own conclusions on that.

If you're going to use constructive cross-examination, you're probably not going to want to then turn around and try to impeach that witness because you want the arbitrator to believe the constructive part of that testimony that you've got.

Let me give you six ideas.

Number one — Don't repeat the unfavorable information that the witness has already given. You’re just repeating stuff that you don't want to hear and you don't want the arbitrator to hear again.

Number two — Use short questions and use plain words. Don't go into great big long complicated stuff.

Number three — Use leading questions. People say don't use leading questions, but this is cross-examination and you can (and Irving Younger the great expert says you must) always use leading questions that would elicit either a yes or no answer.

You came to work at eight o'clock that morning? Yes. The supervisor was already at her desk? Yes. And so on  — very simple questions.

Number four — You should usually know what the answer is going to be before you ask the question. Otherwise, you might get surprised, unfavorably.

Number five — I want you to listen to the answer. I see it happen all the time where an advocate has a series of questions they want to ask and they go bowling through that series of questions, but they miss one of the answers that would have led them down a different rabbit hole that could have been quite favorable.

Number six — Do not quarrel with the witness. Do not argue with the witness. It only makes you look bad and it usually doesn't help your case at all. Save your argument for when the case is over and you get to make an argument to the arbitrator.

Remember — Always know why are you cross-examining. Is it constructive or destructive? And in advance of the hearing prepare a series of questions that lead you down the path you need to get to the answers that you want from the witness.

Tips on arbitration opening statements———>

Your opening statement is the one chance that you have to make a first impression.

It's the first chance you have to tell your story. And it's the only chance to warn me in advance about what I should be watching out for. I come to the hearing knowing nothing, and this is your chance to get in my head. This is your first final argument. This is your chance to tell your story before I hear the witnesses. So do one. Don’t skip it.

 Come into the hearing with an opening statement and start with a bang. Give me your theme. Tell me what your key witnesses are going to say. Tell me what your key documents are. If there's going to be a credibility problem in the case, explain to me in advance during the opening statement why your key witnesses are more credible or why their key witnesses are less credible, so when I hear those witnesses, I have your story about them in my mind, so I know what to watch for.

 When you do your opening statement do not shy away from your weak points and do not shy away from their strong points, because you know as well as I do that they will bring them up, and it's better if you bring them up first.

 So, do make an opening statement. Start with a bang. And then the hearing will go much better for you.

Tips on arbitration pre-hearing preparation———>

This is your key to success at your arbitration hearing.

You've got three things to work with: Facts. Rules. Your own skill.

The rules: In every case you're going to have some rules—a statute, a government regulation, a collective bargaining agreement, employer’s rules of conduct, past practice, something else. And the question ordinarily in an arbitration hearing is—was there a violation of that rule? Or the other side is going to be trying to show that that rule was not violated.

So take a careful look at the rules are that you're dealing with. Tease out the elements. Look for the nouns, the verbs, the adjectives.

And then take a look at your facts. Look to see what did happen. Look to see what did not happen. Look to see what actually happened but it happened in a different way than what the other side is trying to demonstrate.

Line up the elements that you've got from your rules, and put them side by side with the facts that you're going to want to prove—so you're combining the elements with the facts.
Element and Fact, Element and Fact, Element and Fact.

And what are your facts? These are your witnesses. These are your papers, your documents. emails, printouts of text messages, whatever documents you might have.

When you're looking at those facts, be sure to be clear on what your weak points are. Don't ignore your weak points. They're going to bring it up. And don't ignore their strong points. So: your strong points, their strong points, your weak points, their weak points. Make sure you have a good idea what those are.

Then? Most people will say you should develop a theme—something you can tell your story around, because really that's what you're doing at the hearing. You're telling a story. An employer might say “well, you know this employee just kept doing these things over and over and finally this was the straw that broke the camel's back.” Or they might say “good employee but did a very bad thing.” The union side might be saying, “you know, progressive discipline is the bedrock of the disciplinary system, and progressive discipline was not followed here.” Or they might say “the investigation was very sloppy and the employer rushed to judgment.” So have a theme, and you tell your story around that theme.

Then before the hearing get your exhibits in order. Make sure you have four copies: yourself, the other side, the arbitrator, and the witness. Put those together in some logical order. Maybe they're batched by witness, or in chronological order, or they're loose. Maybe they're three-hole punched and put into a binder.

And then figure out the order in which you're going to have your witnesses testify so the story get told in the way you want it to be told.

And don't forget to spend some time before the hearing preparing your cross-examination.

“Background circumstances” to the garbage heap

Watch video [HERE].

Funny [not funny!] that many courts were imposing an extra pleading burden on certain Title VII plaintiffs, such as males, whites, heterosexuals. They had to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

That’s exactly the kind of discrimination Title VII was designed to eradicate.

Unanimous US Supreme Court to the rescue in Ames v. Ohio Dept of Youth Services (06/05/2025) [PDF]

They said: “The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.  We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.”

The end of "reverse discrimination"

As expected, the US Supreme Court was unanimous in Ames v. Ohio Dept of Youth Services (06/05/2025) [PDF].

The 6th Circuit held that a straight female had failed to meet her Title VII prima facie burden because she had not shown "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

In reversing, the US Supreme Court said: “The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.  We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.”