21 Tips For Effective Advocacy:
What Every Party in Arbitration Needs to Know

  1. Preparation for the arbitration hearing should include four different cases: 1) your case, 2) the attack you expect the opposing side to make against your case, 3) the case you expect from the opposing side and 4) your response to the opposing side’s case.

  2. The issue statement clarifies the matter in contention and limits the arbitrator’s authority.  Stipulating the issue speeds up the hearing and helps insure that the parties receive an award that is on point.

  3. The issue statement ought to be a neutral reflection of the dispute.  Do not try to support your arguments by how you state the issue.

  4. There should be a clear, discernible relationship between the issue statement and the actual grievance.
     
  5. In building your case decide whether the matter in dispute primarily concerns 1) a different factual perspective, 2) differences in interpretation, definition or meaning, 3) the application of basic values or 4) a focus on the best course of action.
     
  6. Create an exhibit list by placing at the appropriate exhibit number on the front of each document you intend to submit. Create a separate list of the exhibits that you can give the arbitrator and the other party.  You are not bound by this list but it does speed up the process substantially and it will help organize your case.

  7. Bring four copies of each exhibit: one for the arbitrator, one for the opposing side, one for the witness and one for yourself.
     
  8. Work with the other party to create a submission consisting of those facts on which you agree.  This will reduce the amount of hearing time needed to place the same information on the record by the way of witnesses and other forms of evidence.

  9. Create for the arbitrator a list of witnesses that you intend to call.  Make sure the names are spelled correctly.  List the witnesses in the order that you expect to call them.  Again, you are not bound by this list but it makes the process more efficient, the arbitrator’s job easier and can be a tool for you to use to help build your case.

  10. Brief your witnesses as to hearing protocol including the fact that they will face both direct and cross examination.

  11. Witnesses need to know that straightforward, direct answers help to build credibility, even when the answer is sometimes painful.  Arguing with the examiner is probably the least effective thing they can do.

  12. With each witness, the first step in proper direct examination is to correctly identify the person for the record.  This can include their name, position with the employer, length of employment and other similar information that may be important to set the background for the testimony.

  13. Determine ahead of time whether you will want to sequester the witnesses.  If the two parties cannot agree, you can move to have the witnesses sequestered at the start of the hearing.

  14. Have a place for witnesses to stay when they are not testifying.  They may be there longer than you think.

  15. If you’re going to call a witness by telephone, make sure that you have the necessary means to place the call (like long distance billing information) equipment that is properly working, equipment that can clearly be heard and that you have scheduled a time when the witness can be effectively reached.
     
  16. Most arbitrators will work with you to facilitate any special needs that witnesses have regarding schedule if you provide notice of scheduling issues at the start of hearing.
     
  17. Remember, you can present witnesses and other evidence to impeach the testimony of the person testifying but you cannot openly disagree with his or her testimony.
     
  18. Your opening statement is the time for you to tell the story from your perspective.  Think of it as a time to begin educating the arbitrator.

  19. A written opening is acceptable but I often feel that the parties communicate better with the arbitrator without the written statement.  There is something about looking a person in the eye when you’re talking to them.

  20. Scripting at least an outline of the questions that you will pursue with each witness will improve hearing efficiency and give greater coherency to your case.

  21. Give serious thought to providing both a closing oral statement and final written arguments.