Guide for Employment Arbitrators

Introduction
In seeking to resolve workplace conflicts fairly and efficiently, employers and employees turn to the American Arbitration Association as a resource for the full spectrum of dispute resolution options--factfinding, early neutral evaluation, mediation and arbitration--for disputes over a wide range of issues relating to the employment relationship, such as the breach of an employment contract, wrongful termination, sexual harassment and discrimination. Critical to the Association''s involvement in resolving employment disputes is the adherence by all parties to standards of fairness, which include access to relevant information, the right to representation by counsel, appropriate remedies and the opportunity to have one''s case heard by an impartial arbitrator or mediator with substantive knowledge of employment law.

The Guide for Employment Arbitrators discusses the role of the arbitrator, the rules and procedures, and the authority of the arbitrator in resolving employment disputes under the National Rules for the Resolution of Employment Disputes. When reviewing this guide, arbitrators should pay particular attention to the sections relating to the arbitrators'' authority, the arbitration management conference, discovery, burden of proof, and remedies. Arbitrators should also be sure to read A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship, which the American Arbitration Association--along with representatives of the American Bar Association, the American Civil Liberties Union, the National Academy of Arbitrators, the National Employment Lawyers Association, the Federal Mediation and Conciliation Service, and the Society for Professionals in Dispute Resolution developed and adopted in 1995.

What It Takes to Be a Good Arbitrator
The arbitrator should be a person of integrity, sound judgment, and impartiality, and must be experienced in the field of employment law.

He or she must be able to decide cases in accordance with the applicable law, the National Rules for the Resolution of Employment Disputes of the American Arbitration Association and its ethical guidelines.

The purpose of this guide is to supplement the arbitrator ssubstantive qualifications with information about arbitration procedures and techniques to effectively manage and control the arbitration process.

The Role of the Arbitrator
The arbitrator is expected to decide the issues presented. Courts will generally not review awards (arbitrators'' decisions) on their merits. This has long been a settled principle of arbitration law.

Federal and state laws apply to agreements to arbitrate and to arbitrators'' awards. The enforceability of an award could depend on how the hearing was conducted. If the arbitrator has acted in accordance with the agreement of the parties, the rules of the American Arbitration Association, and applicable law, the award will meet the standards prescribed by law.

The Importance of Impartiality and Disclosure
An arbitrator shall have no personal or financial interest in the results of the proceedings and shall have no relation to the underlying dispute or to the parties or their counsel that may create an appearance of bias. This is set forth in Section 11 of the National Rules for the Resolution of Employment Disputes. In addition, arbitrators must also comply with the disclosure requirements of applicable law and the AAA rules.

Not every relationship casts doubt on an arbitrator''s impartiality. Often, it is enough for an arbitrator to disclose the connection before accepting the appointment. Arbitrators are advised, whenever potentially disqualifying information arises, to err in favor of disclosing it to the parties, so that parties can make informed decisions in the selection of the arbitrator.

If you discover, upon being asked to serve, some prior or present business connection with one of the parties and/or counsel and the contact is so close as to be disqualifying, you should disclose the relationship and decline to serve.

To the extent possible, the AAA will provide the names of the parties or their representatives in recent cases decided by the listed arbitrators.

When parties and their witnesses assemble in the hearing room, you might recall for the first time an association with a person involved. If this happens, you should stop the proceedings and contact the AAA case administrator. Prompt disclosure gives the parties an opportunity to waive their objections. Such a waiver will bar any subsequent objection to the award on grounds of bias.

An arbitrator should not communicate with the parties and their counsel except in the presence of both parties. The arbitrator should decline luncheon invitations and avoid similar unilateral contacts during the pendency of the case and for a reasonable time after the case concludes.

Arbitrators must be impartial in both fact and appearance. You should be careful not to comment unfavorably about any party or witness.

Updating Your Biographical Information
Arbitrators serving under the Association''s National Rules for the Resolution of Employment Disputes must be experienced in the field of employment law, typically having a minimum of twelve years of experience in the field of employment disputes, and have a demonstrable familiarity with current substantive employment law. While the AAA endeavors to conduct periodic updating of the biographical information about its arbitrators, it must rely on arbitrators to supply uptodate information on their professional backgrounds, potentially disqualifying relationships, and other relevant information. This information should be supplied by the arbitrator on the Roster Application and the Supplemental Data Sheet for Applicants to the Employment Panel. Toward that end, both the Panel Data Sheet and the Notice of Appointment contain language requiring the arbitrator to notify the AAA of any changes to the biographical information that it possesses. For arbitrators currently serving, the local regional office and the national Panels Department must be advised of any changes. We urge arbitrators to promptly communicate all such information, whenever they may learn of it, to the Association.

Role of the AAA Staff
When arbitration is conducted under the National Rules for the Resolution of Employment Disputes, the Association assigns a case administrator to help you in your duties as an arbitrator. The administrator will determine the preferences of the parties regarding the time and place of hearings and report their preferences to you. You will then set a mutually convenient date without having to be in personal contact with the parties. The same procedure applies when a party asks for a postponement, when letters or documents are exchanged, or when you are asked to issue a subpoena.
The case administrator can answer questions about the rules at any time. The case administrator will provide you with a briefing sheet at the outset of the hearing; please read this briefing sheet carefully.

The Arbitrator''s Authority
The arbitration clause is the provision of a contract by which parties agree that disputes arising in the future will be submitted to arbitration. A clause calling for arbitration of an employment dispute may be found in a contract of employment, personnel manual, employee handbook or other document. Parties may refer to the National Rules for the Resolution of Employment Disputes of the American Arbitration Association. The effect of such a reference is to provide a comprehensive, selfexecuting method for proceeding. A typical arbitration clause might read: "Any controversy or claim arising out of or relating to this contract, or any breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.î Some employers modify the employment dispute resolution program to include a number of dispute resolution procedures prior to arbitration.

Many employment arbitrations are initiated when one party (bound by a dispute resolution clause) demands arbitration, asking the arbitrator to order a remedy for the alleged violation. You must examine any applicable statutes to see whether the issue is subject to arbitration and whether the relief sought is within the granted authority. The party against whom a demand for arbitration is served may deny the claim or file a counterclaim.

Disputes between parties not having a prior agreement to arbitrate may be submitted to arbitration. This is done by means of a submission agreement signed by both parties.
For cases filed on and after June 1, 1996, the National Rules for the Resolution of Employment Disputes will apply for all employment cases, either where they are expressly called for or where the arbitration agreement provides for arbitration, by the AAA or under the rules of the AAA. For cases filed between June 1, 1996 and December 31, 1996, wherein the arbitration clause or dispute resolution program specifically calls for other AAA rules, such as the Labor Arbitration Rules, the Commercial Arbitration Rules or the California Employment Dispute Resolution Rules, the rules as named in the clause will apply if either party insists. However, as of January 1, 1997, the American Arbitration Association will administer all employment cases arising out of employer-promulgated ADR programs under the National Rules for the Resolution of Employment Disputes, even if the arbitration clause or dispute resolution program calls for a different set of rules.
It is the policy of the American Arbitration Association and the obligation of the arbitrator to resolve cases in accordance with the law. The Association has also endorsed the due process standards outlined in A Due Process Protocol for the Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship.

Applicable Rules of Arbitration
The Rules state that:
The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the American Arbitration Association (hereinafter AAA) or under its National Rules for the Resolution of Employment Disputes. If a party establishes that an adverse material inconsistency exists between the arbitration agreement and these rules, the arbitrator shall apply these rules.

These rules, and any amendment of them, shall apply in the form obtaining at the time the demand for arbitration or submission is received by the AAA.
If, within thirty (30) days after the Association''s commencement of administration, a party seeks judicial intervention with respect to a pending arbitration, the Association will suspend administration for thirty (30) days to permit the party to obtain a stay of arbitration from the court. A party is also free to ask the arbitrator to hold administration in abeyance or the parties may agree to do so.

Notification
The American Arbitration Association requires that:
An employer intending to incorporate these rules or to refer to the dispute resolution services of the AAA in an employment ADR plan, shall, at least thirty (30) days prior to the planned effective date of the program:

i) notify the Association of its intention to do so; and,
ii) provide the Association with a copy of the employment dispute resolution plan.
Compliance with this requirement shall not preclude an arbitrator from entertaining challenges as provided in Section 1. If an employer does not comply with this requirement, the Association reserves the right to decline its administrative services.

Mediation
It is important for arbitrators to remember the availability of mediation. Mediation is a non-binding, less formal process where the parties submit their dispute to an impartial third person -- the mediator -- who assists them in reaching their own settlement. Unlike an arbitrator, a mediator cannot impose a decision on the parties. Section 6 of the Rules provides for a voluntary Mediation Conference without payment of an additional administrative fee.

The National Rules for the Resolution of Employment Disputes include Employment Mediation Rules on page 34. Where a case becomes unduly protracted, it might be appropriate for you to suggest mediation. The suggestion should be made to the case administrator for him or her to present the parties with this option. If the parties agree to mediation, the Association will appoint a trained mediator. Should the mediation process not lead to resolution, you will continue to arbitrate the dispute.

Arbitration Management Conference
As soon as possible after the appointment of the arbitrator, but not later than 60 days thereafter, the arbitrator shall conduct an Arbitration Management Conference with the parties and/or their representatives, in person or by telephone, to explore and resolve matters that will expedite the arbitration proceedings. Issues discussed can include: discovery, applicable laws, standards, rules of evidence, burdens of proof and allocation of attorney fees (Section 8 of the National Rules for the Resolution of Employment Disputes). An Arbitration Management Conference can be of particular importance when the parties have limited experience in the process or where the case involves complex matters.

The specific matters which can be addressed include:

· the issues to be arbitrated;
· the date, time, place and estimated duration of the hearing;
· the resolution of outstanding discovery issues and the establishment of the scope of discovery;
· the laws, standards, rules of evidence and burdens of proof that are to apply to the proceeding;
· the exchange of stipulations and declarations regarding facts, exhibits, witnesses and other issues;
· the names of witnesses (including expert witnesses), the scope of witness testimony and witness exclusion;
· the value of bifurcating the arbitration process into a liability phase and damages phase;
· the need for a stenographic record;
· whether the parties will summarize their arguments orally or in writing;
· the form of the award;
· any other issues relating to the subject or conduct of the arbitration;
· the allocation of attorney''s fees and costs.

Location of the Arbitration
The parties may designate the location of the arbitration by mutual agreement. In the absence of such agreement before the appointment of the arbitrator, any party may request a specific hearing location by notifying the AAA in writing and simultaneously mailing a copy of the request to the other party(s). If the AAA receives no objection within ten (10) days of the date of the request, the hearing shall be held at the requested location. If a timely objection is filed with the AAA, the AAA shall have the power to determine the location and its decision shall be final and binding. After the appointment of the arbitrator, the arbitrator shall resolve all disputes regarding the location of the hearing.

Discovery
Discovery is a pre-hearing procedure by which one party gains information held by another party. In accordance with Section 7 of the National Rules for the Resolution of Employment Disputes, the arbitrator shall have the authority to order such discovery by way of deposition, interrogatory, document production, or otherwise, as the arbitrator deems necessary to a full and fair exploration of the issues in dispute. All issues which relate to discovery are to be resolved by the arbitrator. The arbitrator''s power to enforce directions to exchange documents is, by and large, limited to drawing negative inferences from a party''s failure to comply, which in turn can impact the arbitrator''s award. In some jurisdictions, the law gives arbitrators more explicit authority to impose sanctions.
Employment cases require varying degrees of accessibility to necessary information to ensure fair and adequate discovery of evidence. It is presumed that the arbitrator will afford each party an adequate opportunity to present his or her proof, through testimony and documentary evidence, and to cross-examine any adverse witnesses. In certain instances, the arbitrator may decide to order additional discovery when deemed necessary and appropriate.

Burden of Proof
The burden of proof is the duty of a party to substantiate an allegation or issue either to avoid dismissal of that issue early in the arbitration proceeding or to convince the arbitrator as to the truth of the claim. Arbitrators shall address issues relating to burdens of proof in the Arbitration Management Conference and in the hearing. The Rules provide that parties shall bear the same burdens of producing evidence as would apply if their claims and counterclaims had been brought in court. The arbitrator may request that the parties provide briefs to the arbitrator on particular issues.

The Arbitrator at the Hearing
If the parties do not specify the number of arbitrators, the dispute shall be heard and determined by one arbitrator. If the parties cannot agree upon the number of arbitrators, the AAA shall have the authority to determine the number of arbitrators.

If the arbitration involves three neutral arbitrators, it is suggested that the chairperson be the arbitrator with the most arbitration experience and the best knowledge of the specific subject matter in dispute. If one of the arbitrators is an attorney, that fact alone does not automatically qualify that arbitrator to be the chairperson.

When the parties, their attorneys, and their witnesses convene at the hearing, the arbitrator is in charge. It is important that you exercise firm control. After the parties are introduced and witnesses sworn, you should require that the case move ahead expeditiously.

In some states, it is obligatory for arbitrators to take an oath of office. In others, it is optional with the parties. Many experienced arbitrators prefer to be sworn, even when this is not required.

When parties so desire, arbitration awards may be rendered on the basis of documents only, without oral hearing. The material from both parties is sent to the AAA, which then transmits all of the information to the arbitrator for consideration and a determination.
Compensation and Expenses of the Arbitrator

An appropriate rate and other arrangements will be discussed by the AAA case administrator with the parties and the arbitrator. If the parties fail to agree to the terms of compensation, an appropriate rate shall be established by the American Arbitration Association and communicated in writing to the parties.

You are cautioned not to raise the issue of compensation with the parties. The rules provide that any arrangement for the compensation of the neutral arbitrator shall be made through the AAA and not directly between the parties and the arbitrator. All negotiations about fees are between the AAA and the parties.

Arbitrators are usually invited to serve on cases where the hearing is to be held near their business or residence. Outofpocket expenses are reimbursed in those cases where an arbitrator is asked to travel to a hearing. Such expenses are generally reimbursed for travel at coach or business rates and for reasonable accommodations for lodging and meals.

Filing New Claims
Sometimes, a party will want to modify a claim or add a new one. In accordance with Section 5 of the National Rules for the Resolution of Employment Disputes, new and different claims may be filed by the parties at any time before the appointment of the arbitrator. After an arbitrator has been appointed, such changes may be made only with the arbitrator''s consent.

There are various factors that you should take into account before deciding whether new issues should be consolidated into a single arbitration. When you believe, however, that the new claims relate to the dispute that gave rise to the original demand and that it would be consistent with the intention of the parties as expressed in their arbitration clause, new claims and counterclaims may be considered along with those contained in the original papers. Before coming to a decision on the question of new claims, you should ask both sides to state their positions.

Who Goes First?
Arbitration hearings follow a logical pattern, with opening statements, introduction of the initiating documents, examination of witnesses, presentation of exhibits, and final summations. It is customary for the complaining party to be heard first. Section 20 of the Rules gives arbitrators authority over the order of the proceedings; the order may, therefore, be varied when you think it is necessary. Witnesses are usually sworn and are always subject to crossexamination.

A party may wish to have a stenographic record made of the proceeding or may require the services of an interpreter. Such arrangements are made directly between that party and the stenographer or interpreter, and the opposing party should be so notified. The requesting party or parties shall assume the costs of the service. If the record is deemed to be the official record of the proceedings, the other party must be given a chance to inspect the transcript.

At the hearing, a party may realize that it desires the presence of a stenographer or interpreter, but failed to make arrangements in advance, and request that the hearing be postponed pending the arrival of the stenographer or interpreter. After hearing the parties'' positions and considering whether any party will be severely prejudiced by the delay, you must decide whether further testimony will be postponed pending the arrival of the reporter or whether the hearing will proceed in the absence of same. If the parties agree to temporarily suspend the hearing or if you decide to do so, it would be proper for you to inquire whether there are any procedural matters that can be discussed in the interim. Any arrangements arising out of these discussions may then be placed on the record when the case proceeds.

Parties to an arbitration case often have important interests at stake, and it is proper that they assert their positions energetically. A vigorous tone of argument and a strong objection to evidence hotly resisted by the responding party are common in arbitration. However, the arbitrator must maintain order and decorum.

Some General Rules
One of the reasons parties resort to arbitration is their desire for privacy. You should therefore maintain the privacy of proceedings, unless both parties agree to open the hearings or unless a statute requires otherwise.

Persons directly concerned in an arbitration have the right to attend hearings. You may permit others to attend, with due regard for the right of privacy. You may require the retirement of a witness from the hearing room during the testimony of other witnesses. Refer to Section 15 of the Rules regarding attendance at hearings.

The Association has a stated policy of a presumption to the right of counsel in arbitration (as distinguished from mutual assent to proceed without counsel; see Section 14 of the Rules). The arbitrator should be aware of the Association''s policy and a party''s legal right to counsel, should the issue reach the arbitrator for determination.

The parties bring the case to the arbitrator, presenting such evidence and arguments as they deem pertinent. You may directly question witnesses, but most arbitrators let the parties develop the facts in their own way and then ask questions or call for the production of additional evidence as required. The arbitrator has an obligation to ensure that the relevant facts necessary to make a decision are presented, and, ultimately, that justice is done.

At times, a party''s presentation may become repetitious or wander from essential matters. You should insist on an expeditious presentation. Asking the disputants to stipulate to mutually agreed facts is often an effective way to save time and clarify the issues. As an arbitrator, you do, however, have the responsibility to determine the relevance and materiality of any evidence or proof offered. You also have the discretion, in the interest of conducting the arbitration proceeding expeditiously, not to receive irrelevant, immaterial or unnecessarily repetitive proof.

How to Deal with Objections
After a hearing gets under way and the flow of testimony begins, you might be asked to rule on the admissibility of evidence. This issue is addressed in Section 22 of the National Rules for the Resolution of Employment Disputes. Courtroom rules of evidence do not apply in arbitration, but you might still have to decide whether to permit a witness to continue, or document to be entered, after a party objects. One guiding principle must be kept in mind: everything that is material and relevant must be heard. Arbitration awards can be subject to attack when arbitrators refuse to hear material testimony or accept relevant evidence. However, indiscriminate acceptance of irrelevant, repetitive or immaterial evidence can be costly and delay the arbitration process.

Arbitrators should be sensitive to the type of evidence that might be offered by a party. An arbitrator might have to rule on an objection to evidence offered on the ground that it is "privileged" for being attorneyclient communications or terms of settlement negotiations. There are public policy reasons that encourage open attorneyclient communications in the first instance and frank settlement negotiations in the latter instance. Occasionally, a person will testify about actions not personally witnessed. An objection might be raised that this is "hearsay" evidence. There might also be times when an arbitrator is asked to accept evidence that one party alleges to contain "trade secrets." In such instances, arbitrators must rule on the objection raised, bearing in mind that conformity to legal rules of evidence is not required in arbitration.

You need not accept everything offered. When in doubt, you should ask the parties to present arguments. When one party has stated reasons for its objection and the other has answered, the arbitrator can decide whether the testimony or document is relevant or material. Even when evidence of doubtful relevance is accepted, the arbitrator can judge how much weight any piece of evidence is worth. Where two or more arbitrators are serving, rulings must be made by a majority of the panel.

Affidavits and Subpoenas
Many people prefer arbitration because of its convenience. When witnesses are in a distant city and it would be costly to bring them to the hearing, parties may ask you to accept testimony in the form of affidavits. You may agree if convinced that there is good reason for the request. If there is an objection, you should hear arguments from both sides before making a decision. In evaluating affidavits, you should take into account the fact that witnesses were not subject to cross-examination, as they would have been had they appeared in person.

Occasionally, one party will wish to put into the record a document held by the other party. The decision as to whether the document should be produced is made by you. Again, the parties should be asked to comment. If you are convinced that the document is essential, the party should be directed to produce it. This usually results in compliance because few parties in arbitration wish to risk the adverse conclusions that might be drawn from a refusal. When, as rarely happens, there is no compliance, you may either issue a subpoena or draw a negative inference. Pursuant to Section 22 of the Rules, the arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently.

As the time approaches for you to reach a decision, a legal issue might require further clarification. You should not do independent research, but should ask counsel for each side and/or the parties to explain the law. You might also permit each side to file a reply brief.

Investigations Outside the Hearing Room
An arbitrator finding it necessary to make an inspection or investigation in connection with the arbitration shall direct the Association to so advise the parties. The arbitrator shall set the date and time, and the Association shall notify the parties. Any party who so desires may be present during the inspection or investigation. In the event that one or all parties are not present during the inspection or investigation, the arbitrator shall make an oral or written report to the parties and afford them the opportunity to comment.
An onthescene investigation is an extension of a hearing. An arbitrator should not accept testimony from one side that the other has had no opportunity to hear and comment on. Nor may an arbitrator receive evidence of any kind outside the hearing room without protecting the rights of both parties.

Interim Measures
On occasion, a party will request that you grant interim relief to safeguard the subject matter of the arbitration, in accordance with Section 25 of the Rules. At the request of any party, the arbitrator may take any interim measures he or she deems necessary with respect to the dispute, including measures for the conservation of property.
Having considered the parties'' respective positions, whether at an oral hearing or in written form, you then make a ruling that may be made a part of the stenographic record, if any, or reduced to writing and transmitted to the parties through the case administrator.

Postponements
Under Section 17 of the Rules, you must accept postponements where the parties agree to them. You may postpone any hearing, either on your own initiative or for good cause shown, at a party''s request. In practice, requests for postponement must first be communicated by a party to its adversary. Should the adversary object to the postponement request, it becomes necessary for you to rule on the request through the case administrator. If time permits, the parties will indicate their positions in writing, which will be forwarded to you for review and consideration. Where there is insufficient time for this, the administrator will attempt to arrange a conference call involving counsel for the parties, the arbitrators, and the administrator, who monitors the call. A majority ruling of the arbitrators will prevail. This ruling should be communicated to the administrator, not to the parties directly.

The law requires that arbitrators act reasonably in considering requests for postponements. There are several factors to consider when ruling on postponements. Is this the party''s first request? Can the hearings proceed in the absence of an unavailable witness (who can be brought back at a later date) or is that witness vital to the case? Can another witness provide the same testimony? Will any party suffer extreme prejudice by the granting or denial of the postponement request? Will an "offer of proof" resolve the problem?

If a party is abusing the postponement privilege, an arbitrator can set the date for a peremptory hearing, which is not subject to postponement.

Delegation of Authority Is Not Permitted
Arbitrators have broad powers to determine issues of fact, law, and procedure. This authority must be exercised by you; it may not be delegated to others. Occasionally, a question will arise that requires the services of an outside agency, such as a consultant. Parties may jointly authorize you to engage such help. The cost of such an outside service will be subject to allocation in the award unless the parties agree otherwise. This is not a delegation of authority. The ultimate decision is still yours.

The Arbitrator Should Not Participate in Settlement Discussions
During an arbitration, parties sometimes ask for a postponement to permit further negotiations. If they resolve the dispute, they may ask you to incorporate the settlement into your award. This is known as a consent award. This is permissible and can be a collateral advantage of arbitration.

You should not participate in settlement discussions. If the parties voice the issue of settlement, you should excuse yourself from the room. If you are a party to settlement discussions or attempt to mediate unsuccessfully, a party might later challenge your impartiality on that basis.

The Closing of Hearing
After all witnesses have been heard, counsel or parties for each side should be given an opportunity for summation. You should then close the hearing. Unless briefs are to be filed, the time period for delivery of the award begins to run when the oral hearings are closed. The time limits in the contract are binding on the arbitrators. If the parties have not set other limits, you have thirty days under the Association Rules within which to render the award. It is vital that the award be rendered before time runs out. Otherwise, the parties could reject the award or even involve the arbitrators in litigation. Don''t procrastinate.

At times, parties will want to provide you with briefs or with additional material not immediately available. You may agree to receive such material at a later date. You do not close the hearing until the date that has been set for such receipt, at which point the time limit starts running.

The procedure for briefs is simple. The parties deliver them to the Association, which transmits them to you. Parties should be encouraged to exchange all correspondence, including posthearing briefs, directly. This procedure serves a double function: it makes it unnecessary for you to be in personal contact with the parties and it ensures that each side receives the other''s brief.

On occasion, a party will send an unsolicited response to a posthearing brief. It is wise practice to advise the parties in advance that this will not be permitted and that the administrator will be instructed to return such a response to its sender.

Reopening the Hearing
Once the hearing is closed, it may not be reopened without the arbitrators'' permission. You may reopen a hearing upon a showing of good cause by one of the parties, as long as the award has not yet been rendered. You may not reopen a hearing if it would delay the delivery of the award beyond the time in the contract, unless both parties agree to extend that limit. This rule of procedure, when arbitration is administered by the Association, tends to ensure that the award will be rendered promptly. Once again, it is vital that the award be rendered on time.

Remedies
In accordance with the National Rules for the Resolution of Employment Disputes, the arbitrator may grant any remedy or relief that the arbitrator deems just and equitable, including any remedy or relief that would be available to the parties had the matter been heard in court. This authority includes the right to award compensatory and exemplary (or punitive) damages and other remedies to the extent those remedies would be available under applicable law in court.

The arbitrator shall have the authority to provide for the reimbursement of representative''s fees, in whole or in part, as part of the remedy, in accordance with applicable law.
Remedies do not always take a monetary form. For example, you might direct specific performance of the contract. You might also grant injunctive relief.

The award should also include the arbitrators'' final apportionment of administrative fees, expenses, and arbitrator compensation, if any.

The Award Must Be in Writing
Pursuant to Section 32 of the Rules, the award must be in writing and must provide the written reasons for the award unless the parties agree otherwise. The award must include a statement regarding the disposition of any statutory claims. The award must be signed by the arbitrator and, under the laws of some states, be notarized or witnessed. If the case was heard by a panel of three arbitrators, the award must have the signatures of a majority. Arbitrators usually meet after the last hearing to agree on the award. They might disagree on some points. Their conversations should be kept confidential. No arbitrator should disclose what any other member of the panel said during these conferences. The majority rules, however, any arbitrator who disagrees may note a dissent on the award form or elect not to sign the award.

After deciding the award, you should communicate its substance to the case administrator, who will put it into correct form. Please provide the Association with a draft of your award at least two weeks before the award''s due date to allow us ample preparation time. Some experienced arbitrators are willing to prepare the award on their own. This is acceptable to the Association, provided the award contains the necessary information. At a minimum, it must contain:

· a preamble or opening paragraph;
· the body of the award including written reasons for the award and a statement regarding the disposition of any statutory claims; and
· a closing.

Pursuant to the Rules, the arbitrator must allocate the administrative fee(s) and arbitrator compensation, if any, in the award. As to the latter, it is essential that we have your bill for compensation prior to our preparation of the award.

The closing must state in some form or another that the award is in full settlement of all claims (and counterclaims) submitted in the arbitration. It must be signed by a majority of the arbitrators and affirmed by each or notarized, depending on the jurisdiction of the arbitration.

When so requested by a party, you may include a breakdown of the items awarded. When deciding on both claims and counterclaims, your award should clearly indicate your decision in regard to both claims.

When the award is signed, the AAA will deliver it to the parties.

Compromises
You should not compromise unless the dispute clearly calls for this result. Parties generally expect a decision on the issues. This does not mean that the award should grant "all or nothing." If it is your judgment that some portion of a claim is justified, the award may so provide.

The Arbitrator''s Task Is Completed with the Signing of the Award
When you sign the award and return it to the Association for delivery to the parties, your task is completed. The arbitrator need have no further concern with the case. You become, in most jurisdictions, functus officio upon making an award. Arbitrators should not participate in further litigation in the matter. In fact, you should not discuss the award or respond to a request for clarification unless requested to do so by both parties. In some jurisdictions, arbitrators may modify awards in which there are technical or clerical errors. Your administrator will bring this to your attention where appropriate.
Your obligation to maintain the confidentiality of business affairs of the parties disclosed in the arbitration continues. It would be a breach of ethics for you not to keep such information confidential.

Post-Award Communications from the Parties and/or Their Representatives
On occasion, a party or its representative will call an arbitrator after the award is issued, seeking an explanation of the decision. Do not talk at all. Instead, refer the party or attorney to the Association. One reason why an arbitrator should not answer these questions is that the award could still be subject to enforcement proceedings in court. A party might try to impeach the award by getting the arbitrator to divulge his or her reasoning or thought processes. Another reason is that, in rare instances, all or part of a case is remanded to the arbitrator for further consideration. You could be tainted by having had direct exparte communications with one party. Pursuant to the Code of Ethics for Arbitrators in Commercial Disputes, you are required to wait a reasonable period following the conclusion of the case before entering into any relationship with individuals involved in the arbitration.

Conclusion
In this guide, we have called attention to some problems that you might encounter. The problems are usually few. Those that do arise can be readily resolved by you in a professional manner.

No attempt is made to impose a rigid formula. The proposed solutions represent methods that many arbitrators have found effective after years of experience.

You can usually rely on the cooperation of the parties. Parties come to the hearing prepared to accept the arbitrators'' decisions on procedural and substantive matters, recognizing in advance that some of those decisions might not be to their liking. As an arbitrator, you should be firm, but fair.

The American Arbitration Association
Founded in 1926, the American Arbitration Association is a notforprofit, public service organization dedicated to the development and widespread use of prompt, effective and economical methods of dispute resolution.

The educational aspects of the American Arbitration Association''s work are supported by taxdeductible contributions and membership fees. Its membership includes companies, labor unions, trade associations, civic groups, foundations, and organizations of all kinds, as well as individuals who support the responsible use of mediation, arbitration and other dispute resolution techniques. It is inherent in the impartial nature of the Association that, in the conduct of arbitration, members and nonmembers are treated equally; no advantage accrues to any party from membership in the Association as far as case administration is concerned.

A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship