Arbitration -- Labor Agreements -- General Evidentiary Issues

Arbitration vs. Litigation

As with litigation, one of the primary factors of arbitration is the presentation and consideration of evidence. Unlike a trial, however, there are no formal rules as to what types of evidence are acceptable. This fact can mean greater flexibility for the parties involved as well as for the arbitrator. It can also, however, lead to increased confusion and conflict.

Basis for Conflict

In the most general terms, the lack of a rule structure with regard to evidence is the biggest problem in arbitration. More specifically, trouble arises from a variety of places. First, many arbitration cases are argued by attorneys, whose approach is grounded in the legal rules of evidence. Second, there are those arbitration participants without any legal background, presenting what they consider to be evidence opposite a seasoned attorney. Finally, and probably most importantly, the nature of arbitration itself--dispute resolution--means that the parties do not agree on key pieces of information. Hence, they are both looking to strengthen their cases and weaken those of their opponents.

Role of the Arbitrator

In addition to the parties seeking a resolution through arbitration, the arbitrator himself plays a fundamental role in how evidence in presented and reviewed. There are those arbitrators, for instance, who believe that any consideration of the legal rules of evidence is inappropriate for arbitration. That is, they feel that the very nature of arbitration (and its ability to work) lies in its lack of rules and formality. In the case of evidence, anything goes.

More commonly, however, there is the belief that, for the sake of time and fairness, arbitrators must offer some guidance as to what types of evidence will and will not be considered. For most arbitrators, the solution lies in finding a balance between maintaining a working dialog with both parties while moving the case forward. He will seek to avoid, for example, lengthy arguments about what may or may not be admissible, but will share with the parties when a piece of evidence presented will not be weighed as heavily as others.

Evidence

Regardless of the rules regarding its presentation, the actual evidence presented in an arbitration hearing is quite similar to what one would expect in a trial--live testimony, depositions and affidavits, personnel records and employment agreements, and the rulings of other bodies and agencies. As in a trial, the more direct the information, the better.

Where arbitration and litigation part ways is in the way specific types of evidence are considered. Hearsay, for example, is almost always inadmissible in court, but may be deemed acceptable by an arbitrator. The specific circumstances of hearsay vary greatly, of course, but the arbitrator has the leverage to determine what information is reliable and relevant to the proceedings.