scott dispute resolution’s Hearing Guidelines

THE ARBITRATOR’S GUIDELINES FOR YOUR HEARING

I. General Guidelines. 

A. Introduction. The Arbitrator has developed the following guidelines, primarily to streamline the process and to ensure the Parties create a clean and indisputable record at the
hearing. If at all possible, please follow these guidelines in hearings before me. That said, please understand that these are guidelines only, as the Arbitrator recognizes that her arbitrable powers come from the Parties’ applicable Collective Bargaining Agreement, Master Agreement, administrative rules, statute or ordinance (in the case of an interest arbitration or fact-finding) or other controlling document (collectively, the Agreement). Thus, if any of the below guidelines conflict with the Agreement, the Agreement controls.

B. Communications with the Arbitrator. The following guidelines for communicating with the Arbitrator apply to this hearing:

1. E-mail is the Best Method of Communication. The Parties should use e-mail to communicate with the Arbitrator, as sending a fax or a letter by mail will likely not be seen or read for at least a couple weeks; whereas, at a minimum, the Arbitrator checks her e-mail at least once or twice on a workday, even when she is out of town for work or vacation.

2. Ex Parte Communications Will be Deleted and Unread.  Importantly, no matter the method of communication, any communication sent to the Arbitrator must be copied to the opposing Party. In fact, ex parte communications, including any attachments, will be summarily deleted.

3. Stay on the Same E-mail String.  Going forward, please stay on the same e-mail string the Arbitrator sends acknowledging her selection by these Parties. Also, with the exception of hard copies of exhibits, all submissions such as subpoenas, motions or Post-Hearing Briefs should be sent to the Arbitratore-mail, preferably on the same e-mail string.

C. Chief Representation.  Each Party should notify the Arbitrator and the opposing Party by e-mail anytime the Party’s Chief Representative changes. For example, the Employer’s Legal Department may take the matter over from Human Resources, or the Union may have retained outside counsel.

D. Definitions. 

1. The Definition of “Days.”  Generally, unless specifically stated otherwise, “days” means calendar days, unless the day falls on a nationally recognized holiday or a weekend day
(defined to mean Saturday or Sunday), unless otherwise defined in the Agreement.

2. The Definition of “Good Cause” or “Prejudice.”  “Good cause” and “prejudice” shall be defined by the law in the applicable jurisdiction where the underlying grievance was filed. For example, if the grievance was filed in the State of Washington, “good cause” and “prejudice” would be defined by Washington State common law. Similarly, if the grievance is a Federal sector grievance, the law in the applicable U.S. District Court determines the definition of “good cause” and “prejudice.”

II. Preparing for the Hearing.

A. Scheduling the Hearing. The Arbitrator is available for in-person, videoconference hearings, or a hybrid of both, depending on the preference of the Parties. In that regard, please meet-and-confer as soon as possible, then inform the Arbitrator as to what kind of hearing the Parties prefer and how many days of hearing are needed. It would also be helpful to know how many months out the Parties would prefer to schedule the hearing.

1. In-Person Hearings. If the Parties agree to hold an in-person hearing, in addition to the above parameters, please attempt to agree on a hearing location. At the very least, the Arbitrator will need to know the city and state where the Parties propose the hearing will be held.

2. Hybrid Hearings. If the Parties agree on a hybrid hearing, where one Party is inperson and the other Party appears via videoconference, the Arbitrator will be present on the side
that is in-person, absent any mutual agreement otherwise.

3. Videoconference Hearings. If the Parties agree to hold the hearing by videoconference exclusively, the Arbitrator’s personal preference is to hold the hearing via Zoom. Please note that the Arbitrator will not “host” a videoconference hearing.

 PRACTICE TIP: Regardless of the kind of hearing the Parties agree to, the Parties should confer concerning the logistics, such as who will host the videoconference
or whether any special equipment is needed at an in-person hearing, et cetera.

B. Motions.

1. Meeting-and-conferring in advance of filing a formal, written motion is mandatory. Absent language to the contrary in the Agreement, the moving Party must meet-and-confer with the opposing Party prior to filing any motion, such as a motion for continuance, or a motion to bifurcate the hearing. All formal, written motions must summarize the efforts that have been made to resolve the issue(s) between the Parties.

 PRACTICE TIP: In the event of no mutual agreement, the Arbitrator will expect facts and case law and/or language from the Agreement, if applicable, that support
the moving Party’s motion. The moving Party should also provide a Declaration digned under oath, and exhibits, if available, in support of the motion.

 PRACTICE TIP: If the moving Party fails to meet-and-confer with the opposing Party in advance of filing the motion, more likely than not, the motion will be denied.

2. Responses and Replies. The opposing Party has a right to respond to a formal, written motion, and the moving Party has a right to file a reply to the opposing Party’s response. The Arbitrator will ask the Parties to meet-and-confer concerning a motion schedule.

C. Prehearing Conferences. At the request of either Party, the Arbitrator is available to schedule a prehearing conference for up to thirty (30) minutes, at no charge to the Parties. The prehearing conference can be held via conference call or Zoom, depending on the Parties’preference.

D. Subpoenas. If there is no language in the Agreement that provides for issuance of a subpoena, the Arbitrator is willing to sign a subpoena that requires a witness to appear and testify at the hearing, or that requires the production of documents, when the following conditions are met:

1. The Party seeking issuance of the subpoena (the proposing Party) must first meet-and-confer with the opposing Party to determine if the opposing Party will agree to produce the
witness(es) and/or the documents, without the proposing Party having to go through the process of issuing a subpoena.

2. If the Parties are unable to agree, the proposing Party must provide a minimum of fourteen (14) business days’ advance notice to the opposing Party of its intent to have the subpoena issued, and simultaneously provide a copy of the proposed subpoena to the opposing Party.

3. The proposed subpoena must contain the signature of the proposing Party’s attorney or other authorized representative, certifying that the subpoena is necessary, proper, and
requested in good faith.

5. To the extent the subpoena is for the production of documents, the proposing Party must first establish that the proposing Party requested the documents through a formal Reques for Information (RFI), and that the opposing Party did not provide the documents as requested within a minimum thirty (30) days of the date the RFI was served. If the
proposing Party can establish a RFI was served at least thirty (30) days prior, the proposing Party must follow the same procedure outlined in sections D.1-3 above.

7. If there are no objections to the form of the subpoena and/or the Parties mutually agree on the form of the subpoena after conferring, the proposing Party shall provide the subpoena to the Arbitrator to sign. The Arbitrator will sign the subpoena within two (2) business days of the date the subpoena is received.

6. The proposed subpoena for documents must also contain:

the date, time and place the opposing Party is required to produce the documents;
a detailed description of the document(s) the Party seeks.

4. To the extent the subpoena is for appearance of a witness at the hearing, the proposed subpoena must also contain:

the full name (first and last) of the witness;
the date, time and place2 the opposing Party is required to produce the witness;
a detailed description of the subject matter the witness will be required to testify about.

8. Any fees associated with the issuance of a subpoena must be paid by the proposing Party, absent any language in the Agreement to the contrary.

9. All timelines set forth above may be extended by mutual agreement or for “good cause” as defined above.

 PRACTICE TIP: If a Party could have subpoenaed a witness or documents in advance of the hearing but failed to do so, any motion to continue the hearing for reasons that include witness unavailability or documents not produced will likely be denied, absent a showing of good cause or prejudice.

E. Court Reporter. In the Arbitrator’s opinion, whether the hearing is held in-person pr by videoconference or a hybrid of both, it is far less costly to have a court reporter present during the hearing and to thereafter provide a transcript of the proceedings, than it is to have an audio recording or a Zoom recording of the hearing. Thus, the Arbitrator strongly encourages the Parties to hire a court reporter for the following reasons:

1. Having a Court Reporter is Simply More Efficient. Having a court reporter’s transcript streamlines the process and is significantly more efficient as it allows the Parties and the Arbitrator to refer back to the transcript when necessary, rather than spending an exorbitant amount
of time winding and rewinding an audio recording or a Zoom recording trying to find the critical testimony.

2. Having a Court Reporter Refreshes the Parties’ and the Arbitrator’s Recollection. It is also much less likely that the Parties or the Arbitrator will forget or misremember anything that may have occurred during the hearing. For example, an advocate may ask a question that raises an objection by the other Party. By the time the objection is made, the Arbitrator may or may not recall the question. If a court reporter is present, the court reporter can simply read back the question to refresh the Parties’ and the Arbitrator’s memory so that the Arbitrator can efficiently and timely rule on the objection.

3. The Court Reporter Usually Acts as the Custodian of Record. The court reporter usually acts as the custodian of the record, tracking which exhibits were admitted and which were not. Having the court reporter there to act as the custodian of record is much more preferable than relying on the Arbitrator’s mostly good, but occasionally, flawed memory. If there is no court reporter, more likely than not, the Arbitrator will ask the Parties to act as the custodian of record.

4. The Court Reporter Creates a Clear and Indisputable Record. Lastly, and most importantly, the Arbitrator’s number one (1) goal during a hearing is to create a clear and indisputable record. Having a verbatim transcript provided by a certified court reporter is the best way to ensure that happens.

 PRACTICE TIP: While it is the Arbitrator’s strong preference to have a court reporter present, the Arbitrator stops short of ordering the Parties to do so because, ultimately, it is up to the Parties to make that determination. In any event, if one or more of the Parties agree to have a court reporter at the hearing, please make arrangements to have the court reporter present at least fourteen (14) calendar days in advance of the hearing date(s).

F. Stipulations. If at all possible, please be prepared to stipulate to a joint statement ofhe issue(s) to be decided as well as to the admission of Joint, Employer and Union exhibits, in advance of the hearing date(s). Also, to the extent some or all of the underlying facts are undisputed, the Arbitrator encourages the Parties to prepare a stipulated set of facts which eliminates the need for testimony concerning those facts.

 PRACTICE TIP: In nearly every hearing the Arbitrator has previously held, inevitably, the Parties submit the same document as an exhibit. Meeting-andArbitrator’s
conferring on the exhibits in advance eliminates the Parties’ submission of duplicate copies of exhibits and streamlines the process.

 PRACTICE TIP: If the Parties are in an industry where acronyms are frequently used, it would be very helpful if the Parties prepare a stipulated list of the acronyms
and their meanings in advance of the hearing.

G. Exhibits. Regardless whether the Parties stipulate to the admission of exhibits in advance, each Party must provide the Arbitrator with a copy of their exhibits in both hard copy and electronic format.

1. Hard Copy Exhibits. The Arbitrator strongly suggests that hard copy exhibits should be presented in a binder with tabs for each individual exhibit rather than providing a stack of documents with no way to tell which exhibit is which.

 PRACTICE TIP: Marking each exhibit by either the Exhibit number or Bates-stamp number and numbering each page of each exhibit in advance is extremely helpful and greatly appreciated.

 PRACTICE TIP: It is also very helpful if an Exhibit List is provided along with the hard copies of the exhibits. That way the Arbitrator knows exactly where to find
the particular exhibit referenced during the hearing.

2. When to Provide the Proposed Exhibits.

a. In-Person Hearings. If the hearing is held in-person, the Parties may provide the Arbitrator with a hard copy of the exhibits at the date and time of the hearing. The electronic copies of all exhibits that were admitted during the hearing should then be submitted by e-mail to the Arbitrator after the close of the hearing.

b. “Hybrid” or Videoconference Hearings. If the hearing is a hybrid hearing or is held completely via videoconference, the Party appearing by videoconference must mail, FEDEX or UPS the hard copies of the exhibits to the Arbitrator at least fourteen (14) calendar days in advance of the hearing date(s) to ensure that the Arbitrator receives them in time. The Arbitrator will let the Parties know in advance to which office address the Parties should send the hard copies of exhibits. Again, the electronic copies of the exhibits can be submitted by e-mail after the close of the hearing.

 PRACTICE TIP: Typically, the Agreement is admitted as Joint Exhibit 1. If at all possible, please provide the electronic copy of the Agreement to the Arbitrator in both PDF and Word format.

H. Be Prepared to Educate the Arbitrator.

1. Your Industry. While the Arbitrator has general knowledge, background and expertise in a variety of industries, the Parties should be prepared to educate the Arbitrator on the specific aspect of your industry that will be at issue at the hearing. If acronyms are used extensively, be prepared to educate the Arbitrator on what those acronyms mean, especially if you did not stipulate to a list of acronyms and their meanings in advance of the hearing.

2. The Five (5) W’s. Unlike a judge in a court proceeding, the Arbitrator usually holds the hearing with no advance knowledge of the facts, the evidence, the issue(s), or the applicable contract language. Thus, the Parties should be prepared to answer the five (5)-W’s during the hearing: “Who, What, Where, When and Why.”

III. Preparing for the Hearing.

A. The Opening of the Hearing. Generally, the Arbitrator takes care of preliminary matters, such as motions to sequester witnesses, admission of exhibits and a statement of the issue(s) to be decided at the beginning of the hearing. If a court reporter is present, the Arbitrator’s preference is to talk to the Parties off the record, then address these preliminary issues on the record. The hearing can commence once those matters have been addressed.

B. Arguments During the Hearing. The only arguments the Arbitrator will generally allow during a hearing is 1) an Opening Argument, 2) arguments concerning an evidentiary objection, and 3) an oral Closing Argument, but only if the Parties stipulate that no Post-Hearing Briefs will be submitted. If the Parties make an argument to the Arbitrator throughout the course of the hearing that is not related to any of the above, more likely than not, the Arbitrator will instruct the Parties to save their argument for the Post-Hearing Brief, or, in the case of no Post-Hearing Briefs, for their oral Closing Argument.

C. The Order of Witnesses. Unless the Parties stipulate otherwise, the Party who has the burden of proof and the burden of production will present first. Having said that, sometimes a witness is only available at certain times during the hearing. If it is necessary to request that a witness be called to testify out of turn (i.e., during the opposing Party’s case-in-chief), normally, the request will be granted absent a showing of prejudice to the opposing Party.

 PRACTICE TIP:If a Party knows about the witness’ limited availability in advance of the hearing date, or the Party knows that it will not have a crucial document in advance of the hearing date, the issue should be raised with the opposing Party and the Arbitrator as soon as possible, and, in any event, before the hearing starts. Absent a showing of good cause, a motion to continue or cancel the hearing on the date of the hearing because a witness or document is unavailable, without a showing of good cause and/or prejudice to the Party, will be denied.

D. The Rules of Evidence. While the rules of evidence are typically more relaxed in an arbitration,5 the burden of proof generally remains the same as if the hearing is held before a judge in a State or Federal court.6 In that regard, the Arbitrator heavily relies on the Federal Rules of Evidence (the FRE) as a guideline when conducting the hearing for uniformity; moreover, most State rules are the same or similar to the FRE. To quote Arbitrator William H. Lemons:﻿
…I generally use the rules of evidence as a guide in determining admissibility of exhibits and the appropriateness of questions and testimony. While the rules governing admission of evidence at the arbitration hearing will be more relaxed than in a court proceeding, counsel will be expected to lay an appropriate foundation and to observe normal witness interrogation rules regarding the form of questions (leading one’s own witness on substantive matters, for example, will not ordinarily be permitted). Hearsay evidence will normally be admitted if it is of the sort that business people and others commonly regard as trustworthy and rely on. The key word there is trustworthy. Double-and triple-hearsay will not normally be admitted.﻿
I agree with Arbitrator Lemons.

C. The Order of Witnesses. Unless the Parties stipulate otherwise, the Party who has the burden of proof and the burden of production will present first. Having said that, sometimes a witness is only available at certain times during the hearing. If it is necessary to request that a witness be called to testify out of turn (i.e., during the opposing Party’s case-in-chief), normally, the request will be granted absent a showing of prejudice to the opposing Party.

 PRACTICE TIP: Generally, if a Party makes an objection on the ground of “relevance” toward the beginning of the hearing, the Arbitrator will likely overrule
that objection, simply because the Arbitrator usually has no way of knowing what is relevant and what is not, since the Arbitrator does not receive pleadings, the contract language or caselaw in advance of the hearing. Depending on the reason for the relevance objection, the best practice would be to preserve a relevance objection as a standing objection, if necessary. The Arbitrator will then address the standing relevance objection in the Award, after the Arbitrator has a full understanding of what may or may not be relevant.

E. Stipulations During the Hearing. If it appears that some of the facts are undisputed during the hearing (such as dates, times and places of occurrence), the Arbitrator will likely ask the Parties to stipulate to those facts.

F. The Conclusion of the Hearing. Generally, before closing the hearing, the Arbitrator will ask the Parties if they are willing to stipulate to the Arbitrator retaining jurisdiction once the Award is issued, should there be an issue regarding a remedy, if awarded. The Arbitrator will also ask the Parties to stipulate to when the Post-Hearing Briefs are due. The Parties can decide when to submit their Briefs during the hearing, or, more typically, can also meet-and-confer on a submission date once the Parties have received the transcript.

IV. Post-Hearing Matters.

A. Submission of Post-Hearing Briefs. Please submit Post-Hearing Briefs to the Arbitrator by e-mail in both PDF and Word format on the date the Parties agreed to at the hearing, or after meeting-and-conferring, post-hearing.

B. Brief Citations. If a Party’s Post-Hearing Brief cites a previous arbitration award between the same Parties, or a Party cites an Arbitration Award or caselaw not available on Bloomberg, Westlaw or is otherwise not available online, please provide a full copy of the decision with the Party’s brief. Absent any unforeseen circumstances, the record will be closed upon the Arbitrator’s timely receipt of the Parties’ Post-Hearing Briefs.

C. Late Submissions of Post-Hearing Briefs.Briefs submitted to the Arbitrator after the due date (after 12:00 a.m.) may not be considered.

D. Extension to Submit Post-Hearing Briefs.

1. Mutual Agreement. If either Party needs an extension of time to submit its Post- Hearing Brief, the Party who needs the extension (the proposing Party) must first meet-and-confer with the opposing Party to determine if there is mutual agreement to extend the date to submit Post-Hearing Briefs. If there is mutual agreement, simply inform the Arbitrator of the agreed upon date. If a further extension is needed, the Parties must follow the same process.

2. Failure to Mutually Agree. If the opposing Party does not agree to an extension, the proposing Party must first inform the Arbitrator of its attempts to obtain mutual agreement. Thereafter, the Arbitrator will determine whether the deadline may be extended.

 PRACTICE TIP: Generally, the Arbitrator does not deny a request for an extension to file a Post-Hearing Brief unless a request for an extension has been made more than three (3) times and the Party requesting the extension has not shown good cause for requesting a further extension.

E. The Exchange of Post-Hearing Briefs. The Parties are responsible for the exchange of their Post-Hearing Briefs. Briefs may be sent by e-mail to the other Party on the same date the brief is submitted to the Arbitrator; alternatively, briefs may be sent up to one (1) business day after the due date scheduled for filing with the Arbitrator.

F. The Award. Unless the Agreement or controlling legislation provide otherwise (or the Parties otherwise stipulate), the Arbitrator has at least thirty (30) days from the date the Parties’ Post-Hearing Briefs are received to issue an Award.

G. Record Retention. In general, throughout the United States, Arbitrators have absolute immunity from civil liability and are not required to produce any notes or documents to anyone that may or may not be relevant in a subsequent case.8 That said, as further protection from any claim of civil liability, it is this Arbitrator’s policy to shred all paper files and delete all electronic files within five (5) calendar days after issuing the Award.

F. Billing.  Billing statements will be sent at the time the Award is issued unless the statement is for cancellation or continuation fees. All statements are due and payable within thirty (30) days from the date the statement is sent.

1. Per Diem Rate. The per diem rate is $2,500.00 ($1,250.00 per Party) for each day of hearing scheduled ($3,000.00 for interest arbitration hearings; $1,500.00 per Party). All billing for this matter will be for “days.” For example, if the Parties ask for a one (1)-day hearing and the hearing does not last a full day, the Parties will be billed for a one (1)-day hearing. An additional hourly fee of $150.00 per hour will be charged for all hearing time spent after 5:00 p.m. in whatever time zone the hearing is held.

2. Research/Study/Writing Time. Per diem rates are also billable in full-day increments for study time, writing, and research, unless the Parties’ Agreement or legislation requires otherwise.

3. Special Billing Requirements. If a Party has any specific billing requirements (i.e. mileage logs, receipt retention, EEO compliance, etc.), please let the Arbitrator know immediately. Time spent on additional paperwork required for payment will be billed at the rate of $150.00 per hour to the requesting Party.

4. Travel Costs. Travel costs will be billed from the Arbitrator’s nearest office location. For example, if the hearing is held in California, travel costs will be billed from Irvine, California.

5. Split Fees and Costs. All fees and costs charged will be borne equally between the Parties, unless the Agreement or controlling legislation provide otherwise. However, if any Party fails or refuses to pay its share in accordance with such provision(s), each Party agrees to be jointly and severally liable for payment of all fees and expenses.

6. Cancellations and Continuances.

A. If this matter is cancelled or continued more than thirty (30) calendar days prior to the calendared hearing date(s), there may be a calendaring fee charge of $200.00 per Party. More likely than not, the calendaring fee charge would only apply if the Arbitrator had to use significant effort to schedule the hearing (i.e., it takes the Arbitrator two (2) months or more to simply schedule the hearing).

B. Matters canceled or continued within thirty (30) calendar days or less prior to the hearing date(s) will be charged the full $2,500.00 per diem rate ($1,250.00 per Party) for each day of hearing scheduled ($3,000.00 for interest arbitration hearings; $1,500.00 per Party). Each Party is liable for half of any cancellation or continuance fee, unless the Parties mutually agree to a different arrangement or the Agreement or legislation provides otherwise.

8. Late Payments. Beginning thirty-one (31) days from the date a billing statement has been e-mailed, a Party whose statement remains unpaid will incur nine percent (9%) per annum interest on the unpaid balance, calculated from the first day of the month in which the statement is dated, for each month the statement remains unpaid, until the statement has been paid in full.

9. Rebill Fees.  In addition to interest for past due invoices, if the Arbitrator is required to re-bill a Party past the (30)-day period required to pay the Arbitrator’s invoice(s), that Party will be subject to a re-bill fee of two hundred dollars ($200.00) for each month the Arbitrator is required to send a re-bill for that same invoice.

Questions? E-mail the Arbitrator at ArbitratorScott@scottdisputeresolution.com Please ensure you copy the opposing Party.