So you have a grievance going to arbitration, and you are the HR Specialist tapped to be management’s advocate. You have never functioned in that role before, and your knees are trembling.
Where do you start? Well I am not an attorney. I did not even play one on TV, and I did not stay in a Holiday Inn last night. However, I have served as management’s advocate in many arbitrations with an unblemished track record.
Lucky, yes I will admit to that, but as I wrote in two prior articles that appeared here in FedSmith, among your keys to success is witness preparation, and preparation in general. Mark Twain once remarked that “you only have one opportunity to make a good first impression.” And, Plato once said that “the beginning is the most important part of your work”. First impressions do matter!
To be successful in arbitration you have to have a lot of thespian in you. You are there to tell a story about why you are there, and why at the end of the hearing the arbitrator should be swayed to your side to sustain the action taken by management.
Opening Statement
Think about the hearing as if it was a very good play that you have seen. The hearing and the opening statement is that play where you are the star performer, and the arbitrator is a tough theater critic. The beginning of the play, like any good book, is where the actor tells you the basic things you will need to know so the rest of the story will make sense to you.
Arbitrators see the opening statement as the road map that outlines the evidence and rationale for why you should prevail. Stick to the letter of the action being arbitrated. Don’t throw everything into your opening statement. Use only what you intend to prove through the facts, witness statements, and anything else that you intend to present.
The length of your opening statement should normally be brief, but that can vary depending upon the issue and the complexity of the issue being arbitrated.
An effective opening statement has three core objectives: to provide the arbitrator with a framework or roadmap of the critical facts, contract provisions, and prior case law.
While arbitrators are not bound by prior case law, using decided cases that support your theory often will guide an arbitrator to consider the similarities, and strive to be consistent. This makes their writing of the decision a lot easier. It also affords you the opportunity to establish your credibility, to build rapport with the arbitrator, and to persuade the arbitrator that your actions were correct and deserve to be sustained.
It is your job to persuade the arbitrator why your theory of the case should prevail. An opening statement is advocacy without argument. It is storytelling at its best as you weave together the core issue(s), the facts, the contract provisions, prior case law that is relevant, the framework in which evidence is to be judged. It leads the arbitrator to the end of your story and describes why your version is not only the most credible, but justified.
Failing to prepare an effective opening statement may lead the arbitrator to assume that you did not take time to properly analyze the legitimacy of your actions. While this conclusion may be unfair (and incorrect), remember that arbitrators are people too, and often their decisions may come from a subjective evaluation of what they see and hear.
When you prepare a written opening statement, be sure to give a copy to the arbitrator after you have completed your statement. You must also give the union a copy. The arbitrator will then have a written roadmap to your case to follow and compare the union’s case to. In certain cases (Complex) it may be best to give it at the beginning so the arbitrator wouldn’t get as lost.
Opening statements are the formal beginning of the arbitration hearing. The importance of an effective opening statement cannot be overstated. This is the moment when you have the arbitrator’s undivided attention, and the time the arbitrator is most interested in learning what is the nature of the dispute, the central facts, the contractual and legal provisions at issue, and your theory of the case. This is your opportunity to take center stage to tell your story directly to the arbitrator. The opening statement is the roadmap that will guide the arbitrator to the destination of your choosing. An effective, persuasive opening statement will assure the arbitrator that he or she can rely on your representations. A poorly executed opening statement will place your credibility and the essence of the action at risk.
In the case of Hillen v. Army OSC, 87 FMSR 5678, and 35 MSPR 453 (1987), when a witness presents conflicting evidence regarding a material issue, the arbitrator or judge will usually resolve the conflict by finding one party to be more credible than the other.
The Hillen Factors are:
- Identify factual questions in dispute;
- Summarize all evidence on each;
- State which version he/she believes; and
- Explain in detail why the chosen version was more credible.
Credibility is the master key to success, and you can control the environment by having a very well prepared case as to how your hard evidence and/or testimony is going to make your version of the dispute the most credible. If you can succeed in doing this, your chances of winning go up tremendously.
Case Theory
You should have a theory of your case. The theory of your case should be a sentence or two, or a paragraph. It succinctly says why you should win.
The rest of the opening statement supports that theory. There is no such thing as a “perfect” case that is a slam dunk. Both sides have weaknesses in their case. If that was not true, the case would have settled, and you would not be at the fourth step to the grievance procedure.
Do not let your opponent exploit your weakness(es). In your opening statement briefly offer an explanation for them. You know they are going to come out, so do not let the other side maximize leverage against you. Being straightforward is always a better strategy, and one that will enhance your credibility.
During my career I have experienced a common tactic in either negotiations or at the start of the arbitration. The union will attempt to block your ability to have an opening or closing statement, and have actually submitted proposals to that effect.
I also had an arbitration where the union objected to my making an opening statement because they were not prepared to make one. Never waive your right to make an opening statement. It is YOUR case, and the union has no right to tell you how you should prepare and present your case.
Parties are not required to make an opening statement, unless directed by the arbitrator. The arbitrator is probably the least informed person in the room on the issue(s) at hand at the beginning of the hearing.
With the structured argument of an opening statement, the arbitrator will now know your theory of the case and your road map you will follow with your witnesses and exhibits. Waiving your opening remarks allows your opponent to define the dispute and resolution for the arbitrator during the hearing. You just lost Round 1.
Normally the union is the moving party. Therefore, they are the ones to present their case first.
An advantageous tactic is to reserve your right to make your opening statement after they have presented their case.
If you are the responding party, there are several reasons why you may wait to make your opening statement until your opponent has presented his or her case. First, you may not want to inadvertently reveal anything the opposition can use to support its theory of the case. Another reason may be that you believe your opposing advocate has not presented sufficient evidence to establish his or her claim to impress the arbitrator to grant the relief being sought.
This is now a golden opportunity to attack this failure and how you will refute that management did not violate the contract and/or that the disciplinary/adverse action is indeed for just cause that will promote the efficiency of the service. If the motion is denied, you are still prepared to make your opening statement and proceed with your case.
Finally, the arbitrator allows you to make your opening statement after the union rests your opening statement which will refresh the arbitrator’s memory of your theory of the case.
This was crucial in an arbitration that I was involved where the arbitrator’s first job was a waiter at the last supper, and after lunch he would have a tendency to nod off. In this case, I instructed our witnesses not to direct their answers to me, but to engage the arbitrator directly.
Finally, your opening statement should include the relief you seek as an outcome. It should address the grievant’s claim for relief. Grievants, union stewards and arbitrators are not always well schooled in federal rules and regulations, and that is your job as the advocate to explain why a relief being sought is not legally allowable. Arbitrators armed with this information at the beginning of the hearing are in a much better position to evaluate the evidence presented during the hearing.
