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