Preparing for Interest Arbitration: Choosing the arbitrator, drafting the brief, presenting the case

Join our expert workshop leaders as they conduct an advanced session on planning and presenting a persuasive interest arbitration case. Attendees will hear about tactics and strategies that work, as well as pitfalls to avoid. Topics covered in this interactive workshop include:

• Marshalling the information: What do you need to know before the hearing? What financial information should the employer and union present to the arbitrator? How can the costing of wages, benefits and other issues be done effectively? What are the advantages and disadvantages of using computer software in costing? What tools are available and which are recommended? What should be kept in mind when constructing costing spreadsheets? What sort of external economic, political or social factors should the parties consider when establishing their positions? What sort internal factors, particular to the enterprise, should they take into account? How can the parties best utilize information about settlement agreements and awards in comparable enterprises, and in other industries or sectors? How much weight do unratified settlements carry at interest arbitration?
• Choosing an arbitrator: What factors should each side consider when selecting arbitrators and nominees? When is a single arbitrator appropriate? When is a tripartite arbitration panel preferable? What degree of impartiality is expected of arbitration board members? What level of impartiality is expected of nominees?
• Meeting in mediation: How will the dynamics of negotiations change when the parties are required to proceed to interest arbitration rather than strike or lockout? If one party conceded too much during negotiations, is there concern that there will be too little left for the arbitrator to accommodate both sides? Does it matter whether the parties engage in med-arb or arbitration to address the remaining unresolved issues? How can the parties best minimize the issues in contention and streamline the mediation and arbitration procedure? When should ground rules be set and which ground rules may the parties wish to establish? How should the mediation be structured, in terms of timing of proposals and counter-proposals, signing off agree-to items, stipulating for without prejudice discussion, etc.? Can a party in mediation refer to the opposite party’s positions during negotiations or is this evidence shielded by privilege? Should you carry on in mediation where you left off in bargaining or start afresh? Where packages have been exchanged during direct bargaining, can a party accept certain parts of a package and bargain from that point? When should a party present its bottom-line position? How can differences best be reconciled? What should be communicated to principals and members during the mediation process? To the public? How often should this communication occur? What parts of the mediation process, if any, can be made public during bargaining? Can mediation sessions be tape-recorded by the parties?
• Preparing the brief: How should the brief be structured? What should go in and what should be left out? What is the relative importance of replication, comparability, demonstrated need, bargaining history, economic conditions, ability to pay, total compensation? Should you anticipate the opposite party’s reply in drafting your brief?
• Presenting at the arbitration hearing: How should each side present their case? What evidence is most persuasive? When is oral evidence required? Are rules of procedural fairness violated when interest arbitration boards gather evidence on their own motion? What are effective strategies for communicating fallback and bottom-line positions? Can post-hearing developments, such as settlements or awards, be reported to the arbitrator or the board? Can an arbitrator take into account the behavior of the parties during negotiations and mediation and whether one side or the other has displayed bad faith?
• Judicial review: On what grounds is an interest arbitration award subject to judicial review in the courts? When have applications for judicial review been successful? When are reasons required, and of what kind?

MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.