By Larry A. Jordan
In my 12 years at Judicial Dispute Resolution, I have arbitrated hundreds of cases using the traditional arbitration process, which generally consists of briefs, exhibits, testimony, argument of counsel and an award. Other forms of arbitration include high-low and final offer/baseball arbitration, a method employed by Major League Baseball to resolve player salary disputes.
In baseball arbitration, the player and team each submit a proposed salary figure to an arbitrator who is required to accept either the player's demand or the team's offer. The arbitrator is not permitted to select any other number. Night-baseball arbitration is a variation where the parties exchange written proposals without disclosing them to the arbitrator. After a hearing, the arbitrator makes an award, which is then amended to conform to the closest of the proposals.
In civil litigation, baseball arbitration takes several forms. The most common is one in which the parties agree in writing to submit their proposed awards simultaneously to an arbitrator. The arbitrator communicates the proposed awards to the parties, after which mediation often occurs.
These cases frequently settle at this point because the proposed awards tend to be more "reasonable" than the opening offer/counteroffer process in the typical mediation. If the case does not settle, the written agreement may or may not provide for a hearing with evidence presented either through testimony or declarations, followed by written and/or oral argument of counsel.
The arbitrator is then required to choose one of the two proposed awards, generally without giving any reasons. Sometimes the parties agree in writing to mediation and, if the case does not settle, the parties submit their final offers and the arbitrator chooses one to resolve the case.
In a slight variation of the process, after the arbitrator communicates the parties' proposed awards, each side has the right to give the arbitrator a revised proposal. Again, depending on the agreement, this process may or may not include the presentation of evidence, briefing and argument. The arbitrator must then choose one of the two new proposals in making the award.
Since the arbitration process is by mutual consent, it is imperative that the parties enter into a written agreement that clearly defines the process and is not either procedurally or substantively unconscionable. In the recent case of Hill v. Garda CL Northwest, Inc., decided September 12, the Washington Supreme Court held that a labor agreement containing an arbitration clause was substantively unconscionable as to the provisions relating to the 14-day limitations period, the four-month limitation on back-pay damages and the cost-prohibitive fee-sharing provision.
...login to read the rest of this article.