Remote arbitration hearing

Today I’m conducting my first remote arbitration hearing. I had tried to persuade several others to hold remote hearings, but they all declined, preferring to postpone. I finally stopped asking. Then I got word that one company and union wanted to have a remote hearing.

It makes total sense. The lawyers are in two different states, and I’m in a third. Considering the two lawyers, the arbitrator, and the location where the grievance arose, we’re looking at four locations separated by 800 miles. The only losers will be the airlines and the hotels.

Although I have spent a lot of time preparing and practicing, doing something like this gives me the jitters. Wish me luck.

By the way, you can read my Protocol for Remote Hearings here.

And here is a video on Remote Arbitration Hearings: https://youtu.be/Fyx_ZU62yN0

Arbitration Boot Camp

Here is the Arbitration Boot Camp collection of videos, designed for for parties and representatives in labor-management arbitrations.

Watch “Selecting Your Arbitrator” video

Watch “Pre-Hearing Preparation” video

Watch “Opening Statement” video

Watch “Cross-Examination” video

Watch “Post-Hearing Briefs” video

Watch “Remote Arbitration Hearings” video

Watch “My First Case” video

ADR Podcast

This podcast discusses litigation, arbitration, mediation, and negotiation as they are used in resolving disputes between employees and employers.

[Listen to the podcast]

ADR Podcast preview

[Listen to the Preview]

Here’s a preview of a podcast discussing litigation, arbitration, mediation, and negotiation as they are used in resolving disputes between employees and employers.

The full podcast will be available on September 17, 2020.

Employer waived its right to compel arbitration

[Video] We know that courts will enforce an arbitration clause in an employment agreement. We also know that active participation in a lawsuit can waive that right.

Here we have a case out of the District of Columbia. An ex-employee sued claiming employment discrimination and the employer filed a motion to dismiss, another motion to dismiss trying to move the case to the Philippines, filed an answer with 23 affirmative defenses, and agreed to a very lengthy discovery process.

Five months after the suit was filed the employer filed a motion to compel arbitration. And they had no explanation for that five month delay.

So the court held that this was a waiver. TRG Customer Solutions v. Smith (Dist of Columbia 04/30/2020) [PDF].

The court couldn't figure out whether this employer simply didn't realize until too late they had the right to arbitrate, or whether they simply waited until it was clear they couldn't get a dismissal. And the court talked about the problem of gamesmanship and manipulation.

In any event the employer waived its right to arbitrate, and this case is going to stay in court.

Protocol for Remote Hearings

Here is my Protocol for Remote Hearings. You can also view and download a PDF.

     I have a Zoom Pro Level license, and am available to conduct remote arbitration hearings.

     This Protocol for Remote Hearings explains the use of Zoom for conducting a remote hearing. Once such a hearing is agreed upon, the arbitrator will issue precise instructions tailored to the specific case.

Cost: There is no added cost to the parties or to anyone participating in the hearing. Participants do not need to register with Zoom or to have a Zoom license.

Hardware: Use a PC, Mac, Linux, iOS, or Android. It is best to use a desktop, laptop, or tablet that has a webcam, and to have a DSL or good Wi-Fi connection. You can also use a smartphone or a voice-only telephone.

Initiating the hearing: The arbitrator will email a link to click in order to enter the hearing, along with a password. This will go to each person who will be attending the hearing – the advocates, each person on each side's team, and the witnesses.

When the hearing begins, each participant will be able to view all other participants, except for any participant using a voice-only telephone.

Physical locations: Participants can be anywhere: all together in one place, in separate places for the employer and union, each person in a separate place, or any combination of these.

Security: Participants will receive a password which should not be shared with others. Zoom meetings are encrypted. If the parties agree to have the arbitrator record the hearing, the recording will be saved on the arbitrator's local computer.

Private breakout rooms: The arbitrator will create a set of private breakout rooms – at least one for the Employer and one for the Union. During breaks, the arbitrator can assign each participant to a private breakout room where only those individuals can see each other and speak to each other.

Witnesses: If desired, each witness can be sequestered by having the arbitrator place each witness in a separate breakout room, and the arbitrator can bring the witness into the hearing when needed. The arbitrator will prepare special instructions for the witnesses.

Exhibits: Parties should agree on a method for submitting and exchanging exhibits, such as using a set of joint exhibits and emailing them to the arbitrator prior to the hearing. If a new exhibit needs to be introduced during the hearing, Zoom allows participants to transmit computer files to the other participants.

Recording: Parties should agree on whether or not the arbitrator will record the hearing. Any recording will be saved on the arbitrator's local computer (rather than in the cloud).

Pre-hearing practice: The arbitrator recommends that the parties participate in a complimentary practice session a week or two before the scheduled hearing to make sure everyone is familiar with the Zoom features.

Pre-Hearing preparation - Arbitration Boot Camp

This is video #3 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

Blog RSS

Selecting an Arbitrator - Arbitration Boot Camp

This is video #2 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

Blog RSS

My First Case - Arbitration Boot Camp

This is video #1 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

This 28-second video is admittedly a bit of a puff piece. You can skip it and go to the next five videos, which I hope will be helpful for you.

Blog RSS

Uber drivers get partial win in opposing FAA arbitration.

An important development: Singh v. Uber (3rd Cir 09/11/2019) [PDF]

Singh brought a putative class action in state court alleging that Uber misclassified its drivers as independent contractors as opposed to employees. Uber removed the case to federal court and moved to compel arbitration. Singh opposed the motion, arguing that the court did not have the authority to compel arbitration under the Federal Arbitration Act (FAA). The trial court ordered arbitration. The 3rd Circuit remanded.

FAA Section 1 provides that the FAA does not apply to

“contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) held that ''contracts of employment" includes any contract for the performance of work by workers, so the issue in this case becomes whether Singh was "engaged in … interstate commerce."

The 3rd Circuit rejected Uber's argument that the Section 1 exclusion applies only to workers who transport goods, and not to those who transport passengers, saying "§ 1 is not limited to transportation workers who transport goods, but may also apply to those who transport passengers, so long as they are engaged in interstate commerce or in work so closely related thereto as to be in practical effect part of it."

The 3rd Circuit remanded for the trial court to allow discovery on the issue of whether the class of transportation workers to which Singh belongs are engaged in interstate commerce or sufficiently related work.

Blog RSS

COTW #31 - Unconscionable arbitration agreement

Today’s Case-of-the-Week — Burnett v. Pagliacci Pizza (Washington Ct App 06/17/2019) [PDF] —caught my eye because of the somewhat non-traditional way the court handled the question of unconscionability.

Most courts find a contractual provision (arbitration clause or otherwise) unconscionable only if it is both procedurally and substantively unconscionable.

Procedural unconscionability has to do with how the contract was formed — adhesion contract, take-it-or-leave it approach, huge difference in bargaining power, etc.

Substantive unconscionability has to do with the actual terms in the contract — things that are vastly one-sided, harsh, or unlawful.

In this case the court — remarkably — held that procedural unconscionability alone will do the trick.

Blog RSS

Class arbitration is available only when there is an affirmative contractual basis for concluding that the parties agreed to it (5-4).

Another 5-4 arbitration decision from the US Supreme Court: No class-action arbitrations based on ambiguity. There must be an affirmative contractual basis for concluding that the parties agreed to class arbitration. Lamps Plus v. Varela (US Supreme Ct 04/24/2019) [PDF].

Varela filed a putative class action against his employer on behalf of employees whose tax information had been disclosed to a hacker. Varela's employment contract contained an arbitration agreement, so the employer moved to compel arbitration on an individual – not class – basis. The trial court authorized class arbitration and dismissed Varela's claims. The 9th Circuit affirmed. The US Supreme Court (5-4) reversed, holding that under the Federal Arbitration Act (FAA), an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.

The 9th Circuit recognized that Stolt-Nielsen S. A. v. Animal Feeds Int'l Corp., 559 U. S. 662 (2010), held that a court may not compel arbitration on a classwide basis when an agreement is "silent" on the availability of such arbitration. But the 9th Circuit ruled that Stolt-Nielsen was not controlling because the agreement in this case was ambiguous rather than silent on the issue of class arbitration.

The US Supreme Court pointed out that courts must give effect to the intent of the parties, and it is important to recognize the "fundamental" difference between class arbitration and the individualized form of arbitration envisioned by the FAA. Class arbitration "sacrifices the principal advantage of arbitration – its informality – and makes the process slower, more costly, and more likely to generate procedural morass than final judgment." Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to sacrifice the principal advantage of arbitration. Instead, there must be an affirmative contractual basis for concluding that the parties agreed to class arbitration.

The dissent would allow the application of California's "plain-vanilla rule of contract interpretation" which would require interpreting an ambiguous contract against the drafter.

Blog RSS

Cross-Examination : Arbitration Boot Camp

There are two reasons to do cross examination.

• One I call constructive.

• The other I call destructive.

Constructive cross-examination — sometimes called hitchhiking — is where you're basically going to use the other side's witness as if they were your witness. That witness has things you need to know (or the arbitrator needs to know) and you simply ask a series of questions to get that information from the witness.

The other one is called destructive cross-examination — it's sometimes called impeachment — where you're trying to discredit the witness. Maybe you can show that witness is a liar. That's difficult and infrequent. But you can show sometimes the witness has a poor memory by asking a series of questions and see if they remember, or you can show bias by showing they’re related to somebody or they socialize with somebody. You don't come right out and say “Oh, well, you must be biased.” No, you just let the arbitrator form the arbitrator's own conclusions on that.

If you're going to use constructive cross-examination, you're probably not going to want to then turn around and try to impeach that witness because you want the arbitrator to believe the constructive part of that testimony that you've got.

Let me give you six ideas.

Number one: Don't repeat the unfavorable information that the witness has already given. You’re just repeating stuff that you don't want to hear and you don't want the arbitrator to hear again.

Number two: Use short questions and use plain words. Don't go into great big long complicated stuff.

Number three: I want you to use leading questions. People say don't use leading questions. But this is cross-examination, and you you can — and Irving Younger the great expert says you must — always use leading questions that would elicit either a yes or no answer.

Q: ”You came to work at eight o'clock that morning?”
A: ”Yes.”
Q: ”The supervisor was already at her desk?”
A: ”Yes.”
And so on. Very simple questions.

Number four: You should usually know what the answer is going to be before you ask the question. Otherwise, you might get surprised — unfavorably.

Number five: I want you to listen to the answer. I see it happen all the time where an advocate has a series of questions they want to ask and they go bulling through that series of questions, but they miss one of the answers that would have led them down a different rabbit hole that could have been quite favorable.

Number six: Do not quarrel with a witness. Do not argue with the witness. It only makes you look bad. And it usually doesn't help your case at all. Save your argument for when the case is over and you get to make an argument to the arbitrator.

So, before the hearing starts, when you're thinking about your cross-examination, know why it is you're going to cross-examine — constructive / destructive — and then prepare a list of questions that will lead you down the proper path to the answers that you want to hear or that you want the arbitrator to hear.

Blog RSS

Opening Statement - Arbitration Boot Camp

Tips on making an opening statement at your arbitration hearing, including

• starting with a BANG

• getting in the arbitrator's head

• telling your story.

All part of the "Arbitration Boot Camp" series www.RossRunkel.com/ABC

Blog RSS

Pre-Hearing preparation - Arbitration Boot Camp

Here’s another video in the Arbitration Boot Camp series:  https://www.youtube.com/playlist… 

Tips on preparing for your arbitration hearing, including

• aligning facts with rules

• focusing on strengths and weaknesses.

Blog RSS