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March 21, 2023

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The Betrayal of Arbitration
Posted On: Jun 13, 2008

When the parties submit to arbitration . . . they seek not merely resolution of the particular stalemate, but guidance for the future, at least for similar cases. They could hardly have a high opinion of the arbitrator's mind if it were a constantly changing mind. Harry Shulman (former Dean of the Yale Law School) 68 Harvard Law Review

The underlying rationale of recognizing prior awards . . . in subsequent cases is based on the desirability of continuity and consistency of contract interpretation and the need for finality.
Ray J. Schoonhoven, Fairweather's Practice and Procedure in Labor Arbitration

Were a perception that the grievance-arbitration process is procedurally unfair to take root, it would greatly undermine the goal of fostering peace in the workplace.
Carlton J. Snow, APWU vs USPS, H7C-3D-D 13422, July 25, 1991

I have a great respect for the institution of arbitration and for arbitrators in general. And I thoroughly enjoy my participation in this process of resolving disputes through the adversarial forum that is arbitration. It may be true that many of us who practice arbitration advocacy also criticize it for its very arbitrariness. Remarks are commonplace to the effect, 'Arbitration is a craps shoot.' 'An arbitrator's first job is to arbitrate his own.' Each snide remark reflects the experience that one can never tell how an arbitrator will ultimately rule on any given case. And the sustained-denied records of virtually all long-term arbitrators on our panels are about 50-50. Nonetheless, I have always resisted the notion that arbitrators specifically and deliberately rule on any given case, contrary to evidence and argument, in a cynical bid to stay employed - something referred to as "score-boarding".

My resistance to that notion has worn paper thin. An arbitrator for whom I have always had the utmost respect and other arbitrators - in their dismal abuse of logic and dogged determination to avoid the obvious - are convincing me they serve only themselves and not the parties who provide their paychecks.

Winston Churchill is quoted, "It has been said that democracy is the worst form of government except all the others that have been tried." And one might paraphrase, "Arbitration is the worst method of dispute resolution except all the others that have been tried." The Postal Service and the APWU spend millions upon millions of dollars on arbitration, much of it going directly into the pockets of the arbitrators themselves. Rather than resolve our disputes between ourselves, on issues that have been heard again and again by countless arbitrators, we resort again and again to presenting them to arbitrators. And these arbitrators rely on our business. It is our failure to resolve disputes internally that provides job security to arbitrators. But they have a hand in it as well. Arbitrators have a vested interest in inconsistency.

Why would either party continue going to arbitration over issues that regularly result in the same, predictable outcome? We wouldn't. But in point of fact, we have come to rely on the vagaries of arbitration to achieve disparate results on similar cases. And arbitrators are only too happy to oblige, laughing all the way to the bank! They betray us most cruelly. In seemingly direct contradiction of the expressions of Arbitrator Shulman, Arbitrator Schoonhoven and Arbitrator Snow, those who ply the trade on our arbitration panels seem to deliberately avoid "guidance for the future" or "continuity and consistency of contract interpretation and the need for finality" or "the goal of fostering peace in the workplace". The arbitrators we employ work harder to provide themselves with a continuing supply of contract disputes than to provide us with actual resolutions of contract disputes. Some of them refer to Postal arbitration as "the mother lode" (of arbitrators' revenue, of course).

The fundamental flaw is that both the Union and the Postal Service are content with this arrangement - or so it must seem to our arbitrators. We hold them to few, if any, standards demanding reliable outcomes. We do nothing to ensure their education before placing complex disputes before them. Whether or not they are informed of our prior arbitral history on any given issue depends entirely on what individual advocates provide them in the context of a particular hearing. We do not, in any measurable way, compel arbitrators to render awards consistent with our dispute resolution history. Any regional panel arbitrator may even directly contradict interpretive awards of national panel arbitrators - and do so with impunity.

If either side were actually serious about reducing the amount of money we spend on arbitration, steps would be taken to provide the type of consistency referred to by those who speak so well of the arbitral process. Steps would be taken to educate arbitrators we hire - prior to their being assigned disputes to settle. Steps would be taken to provide arbitrators with full access to the record of our arbitral history. And real penalties would be included in arbitrators' contracts for failures to adhere to our expectations. Unfortunately, at this point neither party seems to be pressing our arbitrators for any level of performance different from what we have been getting.

If prostitution is "the oldest profession" perhaps arbitration is next, and the two are closely akin. These highly paid professionals, like the common prostitute, give their "johns" just enough to keep them coming back for more.

(First published September 2005)

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