Preparing for labour arbitrations is similar to preparing for court trials. However, there are significant differences. Here are some things to keep in mind.

Jurisdiction

Lawyers are often approached by potential clients who want to litigate a dismissal or other workplace issue with, “I want to sue the employer and maybe the union as well.” It’s key to understand that the courts do not generally have jurisdiction to determine labour disputes, including dismissals, that arise when an employee is covered by a collective agreement. The vast majority of such cases are dealt with through the grievance and arbitration process.

Arbitration vs. Court

Unlike judges, arbitrators are normally selected by the parties to the dispute: the employer and the union. The individual “Grievor,” is not a separate party. The Grievor’s interests are advanced by the union which has the right to proceed, withdraw, or settle the case as long as it represents the Grievor fairly. The union, not the Grievor, appoints and instructs counsel.

Perhaps the biggest difference between labour arbitrations and typical court proceedings is the ongoing relationship between the employer and the union. The parties must continue to coexist after the case is over. In conducting a case for either party, counsel should always be mindful of that relationship and avoid tactics that could unduly damage it.

In arbitrations, each side pays its own costs and shares the cost of the arbitration itself.

Evidence

Arbitrators have the authority to accept or reject evidence that might be admissible in court proceedings. That does not mean, however, that rules of evidence go out the window. For example, arbitrators are unlikely to determine any major issue on the basis of hearsay evidence. Make sure you present evidence properly and have witnesses identify and verify documentary evidence you want entered.

Arbitrations do not have the same pre-hearing mechanisms for discovery that precede trials. However, Case Management Conferences are now mandatory in most cases. During those conferences, the arbitrator may direct the parties to exchange particulars and documents. Be cooperative and thorough in providing particulars to the other party and advise your client to cooperate. There are real risks if you do not, including that evidence may not be admitted or an adjournment may be required.

Conducting the Case

Use your opening to tell the arbitrator what the case is about and what the issues are. Delving into factual minutiae does little good at this stage.

Arbitrators will usually discuss the possibility of resolving the case through mediation. Give advance thought to how the case might be settled and how the arbitrator may assist you in reaching resolution.

During the hearing, be respectful toward the arbitrator, counsel, and witnesses. Belligerence may impress your client but will not advance your case. Try to have a clear cross-examination strategy that is not centred on humiliating the witness. Avoid petty objections and don’t overstate your case. Do not argue with procedural rulings after they are made. When you cross-examine, remember to suggest any anticipated contradictory evidence to allow the witness to justify the contradiction.

The closing argument is your chance not only to bring forth jurisprudence, but to go back to the facts and issues of the case, and tie those elements together. Choose a small number of “themes” and emphasize those.

Your duty as counsel extends not just to your client, but to the process itself. If, for example, you refer cases to arbitration that you know will be withdrawn, you may deprive someone else the opportunity of having a speedy hearing.

Arbitrations are, at the same time, less formal and as formal as court proceedings. The trappings are less formal but preparing your case as if you were going to court will serve you well.