This is the third entry in our blog that focuses on the topic of labour law. In case you missed it, you can find the first entry here and the second entry here.
In this blog, our focus is on navigating the arbitration process.
I’ve Just received a Notice of Arbitration: Is it time to Panic?
The short answer to whether you should panic is: no. It’s important to understand, especially if you’re just beginning your labour journey, that arbitration shouldn’t be feared. However, it is important to carefully consider and understand the process and potential outcomes of proceeding to arbitration.
What is Arbitration?
Unless you have operated in a unionized environment before, the word arbitration may not be familiar to you. Arbitration has many similarities and some differences with the court processes you may be more familiar with.
In a nutshell, arbitration is a dispute resolution process. Generally speaking, it allows both parties an opportunity to present evidence and legal argument to an objective third-party decision maker (the arbitrator who is essentially equivalent to a judge) and to receive a binding decision.
Preparing to Arbitrate
One party to the collective agreement normally becomes aware of the other parties intention to proceed to arbitration through some type of formal notification. The sort of notification required will depend on the terms of the collective agreement but can sometimes occur through verbal notification, notification in any form of writing or through some type of agreed-upon form. It’s important that you familiarize yourself with the timelines associated with arbitration that are set out in the collective agreement. It’s critical that you understand if, for example, there are timelines associated with responding to the formal notice of arbitration, or timelines associated with selecting an arbitrator or what the consequences are, if any, for one parties failure to advance the arbitration process in one way or another.
Once both parties are aware that the grievance is proceeding to arbitration it is time to select an arbitrator. This decision should be approached strategically. Some arbitrators are known for expertise in particular subject matters, while you will also come to learn that many arbitrators have skill sets that are simply better suited for some specific types of disputes.
It is also important to understand how much each arbitrator will charge for their services. Typically, an arbitrator charges for their daily attendance. Some arbitrators apply an additional fee for a written decision. These fees can add up quickly if the case takes several days to get through.
Once your arbitrator is selected and you understand the associated costs, it’s time to prepare for the arbitration. Many arbitrators are booked months or even sometimes a year or more in advance. Take note of the various timelines that you must meet for the arbitration for milestones such as document exchange and any exchange of written materials such as briefs or witness statements. It’s important to give yourself a long runway to do all that is necessary to prepare for the upcoming arbitration including things like meeting with potential witnesses, understanding their evidence and putting it all together to present the best case possible to the arbitrator.
Attending the Arbitration
Many arbitrators are still offering virtual arbitrations. In that case, you’ll proceed by way of a virtual meeting platform. If the Arbitration is in person, you’re likely to find yourself in a conference center designed for that purpose.
One major difference between the court process and the arbitration process is that an arbitrator will often act initially as a mediator for the dispute. As such, you can expect that the prospect of mediation may be canvassed on the first day of arbitration. Understanding the potential for mediation or even identifying the grievance as appropriate for settlement may mean you want to select an arbitrator who is also a skilled mediator.
Assuming that the dispute doesn’t settle, the arbitration will commence. While less formal than a courtroom, an arbitration is still a legal proceeding and the arbitrator will expect professionalism throughout the proceeding. While your lawyer will do the bulk of the work once the arbitration gets going, you may find it helpful to take notes throughout the proceeding.
If you have any questions about the exciting world of labour law, be sure to get in touch.