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Arbitration in labor and employment law presents unique challenges that require advocates to be strategic, precise, and respectful of both the process and the participants.

Arbitration in labor and employment law presents unique challenges that require advocates to be strategic, precise, and respectful of both the process and the participants. Arbitrators in these cases often observe common missteps that can be avoided with a thoughtful, streamlined approach. This article provides advice from the perspective of an arbitrator on how advocates can prepare and participate more effectively, ultimately making a positive impression on the arbitrator and strengthening their case.

Labor and employment disputes typically involve complex issues such as collective bargaining agreements, workplace policies, and sensitive employee matters. Given the nuanced nature of these cases, arbitrators emphasize the importance of careful preparation and clear presentation of evidence. They advise advocates to understand and be able to explain the contract, gather and present strong evidence, focus on key issues, and maintain a respectful and professional demeanor throughout the hearing.

1. Thoroughly Review the Contract

Advocates should review the CBA or employment contract well in advance, identifying the specific clauses that apply to the case. This may include clauses related to termination procedures, grievance procedures, discipline, and employee/management rights. A strong understanding of these terms is essential because labor disputes often hinge on precise contractual language. Each word or phrase in a contract can carry significant implications, and arbitrators expect advocates to be ready to explain and interpret these nuances effectively.

Identify Relevant Clauses and Interpretations

When reviewing the contract, advocates should consider multiple interpretations of relevant clauses, especially those with vague or open-ended language. Anticipating how the opposing side might interpret a clause allows advocates to prepare counterarguments in advance, adding depth to their case. Arbitrators appreciate advocates who present a balanced perspective, acknowledging ambiguities in the contract and offering reasoned interpretations or evidence of past practice that supports their case. By demonstrating a command of the contract language, advocates build credibility and lay the groundwork for persuasive arguments.

2. Present Strong Evidence

A strong case is built on a foundation of solid evidence and arbitrators rely on advocates to present credible, well-organized evidence that supports their arguments. Advocates should gather all supporting documentation, including relevant employment records, communications, policies, and other materials directly related to the dispute. In addition to these documents, ensure that every essential piece of evidence is readily accessible in the case file, as arbitrators value a well-prepared file that eliminates unnecessary delays or gaps in the case.

Establish Credibility and Relevance

In selecting evidence, advocates should focus on relevance and credibility. Highlight the most compelling documents and witness testimony without overloading the case with superfluous details. Each piece of evidence presented should be clearly tied to the case’s main arguments, allowing the arbitrator to easily connect the evidence with the advocate’s theory of the case.

Agree on Joint Exhibits When Possible

To streamline proceedings, advocates should work with opposing counsel to establish joint exhibits wherever possible. Agreeing on joint exhibits reduces redundancies and allows the arbitrator to focus on the core evidence efficiently. Visual aids, if used, should enhance the arbitrator’s understanding of complex information without adding unnecessary volume to the presentation.

Address Attorney Fees Early

In many employment law cases, advocates may seek attorney fees as part of the remedy. Discussing attorney fees early provides clarity on the potential entitlement basis—whether statutory or contractual—and allows the arbitrator to set a scheduling order that includes provisions for post-hearing briefs if fees are awarded. Establishing a framework for attorney fees at the outset helps streamline the process, reducing the likelihood of disputes or procedural delays after the award.

3. Structure Arguments Logically

While advocates know their case, they need to appreciate the art of telling the story. Meaning, presenting arguments in a logical sequence. Opening with a clear statement of the case theory, followed by a methodical presentation of evidence and witness testimony, helps the arbitrator grasp the key points without distraction. Avoiding unnecessary tangents or lengthy asides is essential. Instead, advocates should focus on delivering a structured presentation that flows naturally from one point to the next.

Focus on Key Issues

Employment and labor cases often involve multiple points of contention, but not all issues carry equal weight in the final decision. Advocates who successfully identify and emphasize the most critical issues are better positioned to persuade the arbitrator. This may include disputes over specific contract terms, interpretations of workplace policies, or the justification for disciplinary actions. Focusing on these central issues prevents advocates from diluting their arguments by addressing peripheral matters that have minimal impact on the arbitrator’s final decision.

5. Maintain a Professional Demeanor

Professionalism extends beyond the arbitrator to include respect for opposing counsel, witnesses, and other participants in the hearing. Advocates should avoid personal attacks, overly aggressive tactics, or inflammatory language, as these behaviors detract from the case’s focus and can hinder productive dialogue. Even when opposing views or decisions are contested, maintaining a respectful approach strengthens the advocate’s credibility and reinforces their commitment to a fair process.

Avoid Excessive Objections and a Combative Tone

Arbitration often involves a more relaxed standard for the admissibility of evidence than traditional court proceedings. Advocates should avoid excessive objections and refrain from an overly combative stance. The arbitrator is a trained, neutral decision-maker who can assess the relevance and weight of evidence as it is presented. By allowing a broader scope of evidence and maintaining a cooperative approach, advocates demonstrate respect for the arbitrator’s role and create a smoother, less confrontational hearing process.

6. Communicate Effectively

Effective communication is essential in arbitration. Advocates should strive to present information clearly and avoid excessive legal jargon that may obscure their points. Arbitrators welcome advocates who focus on clarity, simplicity, and precision in their language.

Use Plain Language

While legal terminology is sometimes unavoidable, advocates should aim to use plain language wherever possible. By speaking directly and avoiding overly technical language, advocates make it easier for the arbitrator to follow their arguments. Clear language also reduces the risk of misinterpretation, ensuring that the arbitrator grasps the main points without confusion.

Explain Technical Terms When Necessary

If specialized terms or industry-specific jargon are essential to the case, advocates should take the time to explain these terms in plain English. This approach demonstrates consideration for the arbitrator’s understanding and helps bridge any potential knowledge gaps that might otherwise impact the arbitrator’s understanding of the case.

7. Consider the Bigger Picture

Labor and employment disputes often involve ongoing relationships between employees, employers, and unions. Advocates who keep the bigger picture in mind help create a more constructive process that can support future interactions. While advocates should vigorously represent their clients, they should also be mindful of the lasting impact of the dispute on the relationship between the parties. Advocates who approach arbitration with an understanding of these long-term dynamics demonstrate a balanced perspective.

Conclusion

Labor and employment arbitration requires advocates to prioritize preparation, clarity, and professionalism. By understanding the contract, presenting strong evidence, focusing on key issues, and respecting the arbitrator’s role, advocates can strengthen their case and contribute to an effective arbitration process. These practices not only enhance the advocate’s credibility but also foster a respectful and efficient environment that benefits all parties involved.

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Lisa W. Timmons is a highly qualified and experienced arbitrator and mediator of labor and employment, commercial, general civil, probate, domestic relations, and real estate cases. She also offers pro bono mediation to resolve §1983 cases for the U.S. District Court of the Eastern District of Michigan, and discovery motions on the general civil and business court dockets in Oakland County Circuit Court.
Timmons earned a Bachelor of Arts in Communication from Michigan State University, a Master of Arts in Dispute Resolution from Wayne State University, a Juris Doctor from Detroit Mercy Law, and is a Michigan licensed real estate broker.
She was named an Up-and-Coming Lawyer in 2021 by Michigan Lawyers Weekly and received an ADR Hero Award in 2022 from the State Bar of Michigan’s ADR Section.
She is also the Executive Director of the Mediation Tribunal Association (MTA), the largest provider of court-mandated alternative dispute resolution services in Michigan.
Timmons is a member of several other professional associations and enjoys doing pro bono work to promote the diversification of the legal community.

This is the second article in a 12-part series on domestic arbitration, offering a clear guide through each stage of the process.

This is the second article in a 12-part series on domestic arbitration, offering a clear guide through each stage of the process.

In this installment, "The Arbitration Agreement: Drafting Effective Clauses" offers insights into creating strong arbitration agreements that set the foundation for a successful resolution.

Stay tuned for Part 3: “Initiating Arbitration: Filing the Demand and Response” coming next month.

The dispute resolution clause is often the most critical yet neglected part of a contract. While parties meticulously draft provisions for pricing, delivery, and performance, they frequently relegate this clause to boilerplate language, assuming it will never be needed.

However, when disputes inevitably arise, this "afterthought" becomes the lifeline of the contract, determining how efficiently and effectively conflicts are resolved.

A poorly drafted clause can derail the entire process, leaving parties entangled in costly litigation over its interpretation. In reality, this clause is not just a line in the contract—it is the backbone of the agreement's enforceability and the key to safeguarding relationships and business interests.

The importance of a well-drafted dispute resolution clause cannot be overstated, as poorly worded clauses can lead to procedural deadlocks, unnecessary costs, and delays.

A Lesson from the Courts: The Case of the ‘Any Dispute Clause’

Consider an arbitration where a vague arbitration clause leads to significant confusion. The clause reads: “Any disputes between the parties will be resolved by arbitration.” At first glance, this seems straightforward. However, it lacks critical details such as the arbitral forum, governing rules, applicable laws, the number of arbitrators and other pertinent information. When a multimillion-dollar dispute arose, the parties spent months arguing over the basics: where the arbitration would occur, which procedural rules applied, and even whether the clause was enforceable. Eventually, the case ended up in court, where the judge ruled that the clause was too ambiguous to enforce. The result? The parties wasted thousands of dollars litigating the very issue they had hoped to avoid by including an arbitration clause in the first place. This highlights why clarity and specificity in arbitration agreements are non-negotiable.

A comprehensive arbitration clause should address at least the following key points:

• Arbitration Rules: Specify which rules govern the arbitration in case of institutional arbitration preferences such as the AAA Commercial Rules or JAMS Rules. If the parties wish to have an ad hoc arbitration, it is primarily governed by the Federal Arbitration Act (FAA) and the parties' arbitration agreement. If the arbitration agreement is silent on specific procedural rules, arbitrators often look to established frameworks like the UNCITRAL Arbitration Rules, which are frequently used in ad hoc arbitrations worldwide.

• Arbitrator Selection: Define the process for selecting arbitrators. Will there be one arbitrator or a panel of three.

• Venue: Identify the location where the arbitration will occur. This is especially critical in domestic disputes involving parties from different states.

• Governing Law: Specify which state’s law will govern the arbitration agreement.

• Scope of Disputes: Clearly define what types of disputes are subject to arbitration.

When Over-Engineering Backfires

Interestingly, over-engineering an arbitration clause can also create complications. In a case involving a franchise agreement, the arbitration clause spanned three full pages and included every conceivable provision—from discovery limitations to specific arbitrator qualifications. While the intent was to create a watertight agreement, the sheer complexity of the clause led to confusion. For instance, one provision required arbitrators to have at least 20 years of experience in the specific industry, effectively eliminating most qualified arbitrators from consideration. Another clause limited document discovery to 10 pages per party, which proved insufficient for resolving the case’s intricate financial disputes. This illustrates that balance is key—drafting a clause that is thorough yet practical.

A notable example emphasizing the importance of clarity in arbitration agreements is the U.S. Supreme Court case Henry Schein, Inc. v. Archer & White Sales, Inc. In 2019, the Court examined whether courts could bypass an arbitration agreement if the request to arbitrate was deemed 'wholly groundless.' The Court ultimately ruled that when parties have explicitly delegated the question of arbitrability to an arbitrator, courts must honor that delegation—even if they believe the arbitration claim lacks substance. This landmark decision accentuates the critical need for precision when drafting arbitration clauses to ensure enforceability and uphold party autonomy.

Drafting Tip: Think Beyond the Basics

The beauty of arbitration lies in its flexibility, and your clause should take full advantage of this. For instance, a tech company facing potential intellectual property disputes might include a clause specifying that arbitrators must have expertise in patent law. Businesses in highly regulated industries such as finance, healthcare, or technology, often go a step further to double-protect sensitive information by including explicit confidentiality clauses in their arbitration agreements. While arbitration is generally perceived as private, these additional provisions ensure that every aspect of the process, including proceedings, evidence, and outcomes, remains strictly confidential.  The arbitration clause: a gateway to streamlined dispute resolution, not just a contract filler. It is a roadmap for dispute resolution. Take the time to tailor it to your specific needs and anticipate potential conflicts. By doing so, you can avoid the pitfalls of vague or overly complex clauses and ensure a smoother arbitration process. As the old adage goes with a clever twist, “An ounce of arbitration is worth a pound of litigation.”  In the context of arbitration agreements, a few extra hours spent drafting an effective clause can save months of frustration later. Stay tuned for next month’s installment, where we will delve into the intricacies of “Initiating Arbitration: Filing the Demand and Response.” A guide on how arbitration is formally initiated, the filing process, timelines, and the Respondent’s role in answering the claim.

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Harshitha Ram is an international disputes attorney, arbitrator, mediator, lecturer in law, and the President of the Global Arbitration Mediation Academy (GAMA). She serves as the Chair of the ADR Section of the Detroit Bar Association and is the Publications Chair for the Arbitration Committee of the American Bar Association. To learn more, visit: www.harshitharam.com  www.adracademy.us.

Mediation is a private, voluntary dispute resolution process in which a neutral third party--either appointed by a court or invited by all parties to the dispute-- assists the parties by identifying issues of mutual concern, helping them develop options for resolving those issues, and finding resolutions acceptable to all parties.

Mediation is a private, voluntary dispute resolution process in which a neutral third party--either appointed by a court or invited by all parties to the dispute-- assists the parties by identifying issues of mutual concern, helping them develop options for resolving those issues, and finding resolutions acceptable to all parties. In recent years there has been a strong emphasis on utilizing mediation as a means of resolving civil cases. “Facilitative mediation” or, simply, “mediation” as defined in the Michigan court rules is a less intrusive form of third-party involvement in the dispute, since the parties retain control over vital decisions affecting their lives. Mediated outcomes may be tailored to meet the needs and interests of the parties and reflect the parties’ own preferences and priorities in an effort to create a "win-win" result.

Recent experience has shown that in mediation, since parties create their own resolution and because mediators have a duty to ensure that agreements reached are “durable," there is greater satisfaction by the parties to the dispute with the mediated outcome, and with that satisfaction comes a higher level of compliance than with court judgments. The mediation process empowers the parties to understand both sides of the dispute and to fully engage in the process themselves to resolve the disputes: in essence, the participants in the mediation process retain control over the outcome. Since the process is confidential, the parties can keep their matters—and their resolution—private. All of the foregoing virtues of the mediation process have been successful in developing mediated settlements of civil cases.

Prior to January 1, 2022, the Michigan court rules allowed for case evaluation. Under MCR 2.403, 2.404 and 2.503 case evaluation was established to obtain an “objective assessment" of the claims, defenses and counterclaims in a civil proceeding. The case evaluation process was in place for many years and it allowed litigants to receive an evaluation of their case from an experienced, independent third party (or panel) prior to trial. The theory for case evaluation was that the settlement recommended by the case evaluators would assist in allowing the parties to develop a settlement.

The case evaluation rules included a sanction provision which penalized a party for failure to accept the recommended case evaluation amount. A party who rejected case evaluation faced a financial penalty imposed by the court if they rejected the case evaluation amount and then failed to improve their economic position at trial by 10% or more when compared with the dollar amount of the case evaluation. This sanction provision was effectively removed on January 1, 2022, and ended up being the “death knell" of case evaluation. Once the sanctions provisions were removed from the case evaluation rules, case evaluation became meaningless, so the courts and the litigants stopped utilizing it as a pre-trial reality check on the merits of claims and defenses. However, once case evaluation was discontinued, there was no longer any evaluative component to the pre-trial settlement process, and parties were left with a choice to attend a court-conducted settlement conference or mediation to aid their pretrial settlement negotiations. Once courts stopped sending cases to case evaluation, attorney mediators proliferated and began hearing and assisting the parties to the mediation process in reaching a negotiated settlement.

Since January 2022, mediators have learned that in some cases the parties are appreciative of a neutral’s objective evaluation of the claims, defenses and counterclaims framed by the parties’ pleadings. This objective evaluation made by a mediator is commonly known as a “Mediator’s Proposal.” There is no express court rule or mechanism for the creation of a Mediator’s Proposal and, in many cases, it is unnecessary as a trained mediator is skillful in shepherding the parties to a resolution that they create and then embrace.

Further, a Mediator’s Proposal does not have attached to it any form of sanction or penalty for failing to accept the recommendation; indeed, it is nothing more than a recommendation and it may not be an evaluation in a literal sense. However, notwithstanding its limitations, situations arise during a mediation in which the Mediator’s Proposal is especially valuable. Examples of common situations in which the parties request that the Mediator generate a Mediator’s Proposal include cases in which one or more of the parties’ have egos or strong emotions which prevent them from fully engaging in the mediation process because of a refusal or unwillingness to concede any points, even in the privacy of a confidential mediation process.

While there are no sanctions involved in a mediator’s recommended settlement, the parties do end up with a settlement proposal that takes into consideration their own assessments of the claims, defenses and counterclaims in the proceeding. If nothing else, following a day of mediation, the parties can at least leave with a concrete proposal to resolve the case that has been generated by a neutral, third party, who has had the benefit of hearing from the parties and has an appreciation for issues which may not lend themselves to a precise mathematical calculation or which involve taking or refraining from taking actions that are beneficial to the situation and result in a settlement of the dispute.  

There are a couple of elements commonly found in a Mediator’s Proposal that parties find valuable.  When developing a Mediator’s Proposal, the mediator typically states that each party is to respond by a given deadline and only to the mediator as to whether the proposal is or is not acceptable. In this way, if a party rejects the proposal, that party will never know whether the proposal was or was not accepted by the other party or parties. This phenomenon assures that the party who rejects cannot use the mediator’s proposal against the party who accepts by asserting, “if you were willing to take/pay $X, why won’t you pay a little more (or take a little less)”, etc. Generally, once the deadline arrives, the mediator simply announces to the parties that the matter did or did not settle on the recommended terms.  If the mediator’s proposal is accepted, counsel for the parties are left to document and implement the settlement; if either side rejects, the mediator’s proposal remains confidential, with only the parties knowing.  They can then proceed with the case.

Additionally, if a mediator recommended settlement is requested, it generally doesn’t come up until after the mediator has conducted the mediation in accordance with the conventions that have been developed over the years for successful mediations. Before getting to a Mediator’s Proposal, the mediator can receive opening statements from the parties, prepare an agenda, gather facts, and facilitate ongoing discussions between the parties. The mediator can engage in productive reframing of issues, look for common interests, and assist the parties in considering consequences, all of which considerations are shared with the parties. The mediator can still help the parties understand their case and its strength and weaknesses, their opponent’s case as well as alternatives and options. The mediator can bring opposing perspectives to the parties during the negotiation process. The mediator can continue in the role of examining risks and exploring the process following mediation if there is a failure to obtain a negotiated settlement. All of these mediated techniques will be utilized for the mediation process before getting to a Mediator’s Proposal.
And, only in those cases in which the parties are unable to reach a deal and in which all concerned are amenable to obtaining a Mediator’s Proposal is the mediator authorized to prepare a recommended settlement. In this fashion, the mediation process provides the litigants with a sense of security and control and establishes ground rules for further settlement negotiations even if the Mediator’s Proposal is ultimately rejected.

So, while it’s still early in terms of our experience following the demise of the case evaluation process, there are appropriate cases for the Mediator’s Proposal such as the ones described above. In my personal experience there have been a number of situations in which the parties secretly were desiring the input of an objective third party-- such as a trained mediator-- to help them put a settlement on the table. For whatever reason, getting that proposal from an independent third party may be more palatable in some cases than conceding a point or requesting a relief that participants were unable to articulate.

For the foregoing reasons, consideration should be given to a Mediator’s Proposal in appropriate cases so long as the mediation process is carefully applied to the case prior to requesting that the mediator put a recommended settlement figure on the case.

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William D. Gilbride Jr. is of Counsel at Miller Johnson Attorneys, in the firm’s Business practice group. He has built a solid reputation resolving disputes before they reach a courtroom. He also is a seasoned litigator who has tried many cases in state and federal courts over business, contract, real estate and other matters.
Gilbride provides expert counsel regarding contracts, business and corporate law, real estate law, dispute avoidance and resolution, non-compete agreements, business torts, and zoning and land use law. He also handles patent, trademark and trade secret litigation.
He also served as general business and legal counsel for many for-profit and not-for-profit organizations in such matters as mergers, acquisitions, work-outs, and stock, asset and share exchange transactions. He has served as secretary and general counsel for two non-public corporate clients with more than 100 shareholders each. This experience is invaluable to larger, privately held organizations requiring counsel in handling the many issues affecting closely held corporations and minority shareholder rights.
Gilbride is a Fellow of the Michigan State Bar Foundation and the Detroit Metropolitan Bar Association. He also is an SCAO Supreme Court approved civil mediator and was inducted as a member of the American Board of Trial Advocates (ABOTA).
Gilbride received his Juris Doctorate from the University of Detroit and he received his bachelor’s degree from the University of Michigan. He was admitted to the Michigan bar and the federal bar for the U.S. District Court-Eastern District of Michigan in 1984, the U.S. Sixth Circuit Court of Appeals, and U.S. Tax Court in 1986.

This is an overview of adverse inferences in labor arbitration. This includes reviewing provider organization rules, labor arbitration awards, case law, and treatises on labor arbitration.

Introduction

This is an overview of adverse inferences in labor arbitration. This includes reviewing provider organization rules, labor arbitration awards, case law, and treatises on labor arbitration.

American Arbitration Association (AAA) Rules

The AAA Labor Arbitration Rules and the AAA Employment Arbitration Rules do not explicitly mention adverse inferences.

AAA Consumer Arbitration Rule 23 “Enforcement Powers of the Arbitrator” indicates:       

The arbitrator may issue any orders necessary to enforce the provisions of rules R-21 and R-22 and to otherwise achieve a fair, efficient, and economical resolution of the case, including, but not limited to: ...

(d) in the case of willful non-compliance with any order issued by the arbitrator, drawing adverse inferences, excluding evidence and other submissions, and/or making special allocations of costs or an interim award of costs arising from such non-compliance; … . Emphasis added.

AAA Commercial Arbitration Rule 24 says:

The arbitrator shall have the authority to issue any orders necessary to enforce the provisions of Rules R-22 and R-23 and any other rule or procedure and to otherwise achieve a fair, efficient and economical resolution of the case, including, without limitation: ...

(d) in the case of willful non-compliance with any order issued by the arbitrator, drawing adverse inferences, excluding evidence and other submissions, and/or making special allocations of costs or an interim award of costs arising from such non-compliance; ... . Emphasis added.

National Arbitration and Mediation

National Arbitration and Mediation Employment Rules and Procedures, Rule 14(D), says:

The Arbitrator shall have the power to award sanctions against a Party for the Party’s failure to comply with these Rules or with an order of the Arbitrator. These sanctions may include an assessment of costs, prohibitions of evidence or, if justified by a Party’s wanton or willful disregard of these Rules, an adverse ruling in the Arbitration against the Party who has failed to comply. Emphasis added.

Financial Industry Regulatory Authority (FINRA)

Financial Industry Regulatory Authority (FINRA) Code of Arbitrators for Industry Disputes Rule 13212 says:

(a) The panel may sanction a party for failure to comply with any provision in the Code, or any order of the panel or single arbitrator authorized to act on behalf of the panel. Unless prohibited by applicable law, sanctions may include, but are not limited to: ...

•  Making an adverse inference against a party;

•  Assessing postponement and/or forum fees; and ...

(b) ...

(c) The panel may dismiss a claim, defense or arbitration with prejudice as a sanction for material and intentional failure to comply with an order of the panel if prior warnings or sanctions have proven ineffective. Emphasis added.

Adverse inferences in labor arbitration awards

Heinz, NA, 132 LA 1089 (Hornberger, 2013) [cited at Elkouri & Elkouri, How Arbitration Works (8th ed. 2016), p. 8-51], stated:

The Union argues that the fact that the Company failed to produce ___ and ___ to testify supports the Union’s position concerning the creditability of witnesses. This argument does not control for a number of reasons. First, ___ and ___ are bargaining unit employees who may or may not have witnessed the activity in the vicinity of the ___ Room. The record is silent as to whether they are Union officials. Second, they were equally available to both sides as witnesses. They were not peculiarly within the Company’s control. Third, given the fact that these bargaining unit employees were equally assessable to the Union, I do not make an adverse inference against the Company for not calling them.

The failure of a party to call as a witness a person who is available and should be able to provide important testimony may permit an arbitrator to form an inference that the testimony would have been adverse to the party that did not call such person as a witness. Elkouri & Elkouri, pp. 8-51 to 8-52.

Sometimes party A argues that the fact party B failed to call certain employees to testify supports party A’s position concerning the credibility of witnesses. Arbitrators look at whether these employees were equally available to both sides as witnesses. Were the witnesses peculiarly within the other party’s control? Were these bargaining unit employees who were equally assessable to the party?

Michigan case law concerning adverse inferences in arbitration

In UHG Boca, LLC v Medical Mgt Partners, Inc, unpublished per curiam opinion of the Michigan Court of Appeals, issued January 18, 2024, Docket No. 361539, lv den ___ Mich ___ (2024), after the arbitrator issued the final award, the plaintiff moved to vacate in part the award, asserting the arbitrator improperly applied the wrongful conduct rule. The arbitrator had concluded the revenue plaintiff was seeking from defendants was the result of illegal patient billing or other illegal business practices, and, in the arbitrator’s viewpoint, it would be contrary to public policy to enforce the agreements. The plaintiff also argued the arbitrator improperly applied the adverse inference rule when the arbitrator concluded, on the basis of adverse inference, that the parties were conducting an illegal enterprise. The Circuit Court disagreed with the plaintiff and confirmed the award. The Court of Appeals affirmed the Circuit Court.

The arbitrator assigned an adverse inference to the decision of certain witnesses not to testify regarding illegally obtained police reports. The Court of Appeals indicated:

The privilege against self-incrimination permits a defendant to refuse to answer official questions in any other proceeding, no matter how formal or informal, if the answer may incriminate him or her in future criminal proceedings.” In re Blakeman, 326 Mich App 318, 333; 926 NW2d 326 (2018). However, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the amendment does not preclude the inference where the privilege is claimed by a party to a civil cause.” Id. at 334 n 4 (quotation marks and citation omitted). While plaintiff is correct that certain witnesses that did not testify were defendants, individuals associated with plaintiff also refused to testify at the hearing. Moreover, contrary to plaintiff’s assertion, the arbitrator did not rely solely on the adverse inferences when he made his determination that the businesses were operating in an illegal fashion. Accordingly, the arbitrator did not err when it applied the adverse interest rule. Emphasis added.

Lustig v Dep’t of Health and Human Services, unpublished per curiam opinion of the Michigan Court of Appeals, issued March 12, 2020, Docket No. 346447, lv den ___ Mich App ___ (2020). Defendant employer argued plaintiff employee’s due process rights were not violated by the employer’s failure to produce all of the requested documentation because he had the opportunity to be heard and to defend himself by subpoenaing the testimony of other employees to provide the information he sought. Plaintiff employee argued he was unable to present an adequate defense because he lacked requested documentation regarding his work requirements and objectives in comparison to other similarly situated employees and thus he was denied procedural due process. The Court of Appeals agreed with defendant, reversed the Circuit Court’s order, and reinstated the Michigan Civil Service Commission’s decision upholding the Hearing Officer’s determination that defendant had just cause to terminate plaintiff’s employment. The Court of Appeals indicated: “[T]he record belie[d] plaintiff’s contention that he was not afforded a fair opportunity to present an adequate defense without receiving all of the documentation that he had requested.”

In Santamauro v Pultegroup, Inc, unpublished per curiam opinion of the Michigan Court of Appeals, issued December 20, 2016, Docket No. 328404, the plaintiff employee agreed to arbitrate claims arising from his employment. He was discharged. He initiated an employment arbitration alleging wrongful discharge. The arbitrator found the plaintiff employee had deliberately spoiled evidence by removing the hard drive of his employer-owned laptop computer before returning it to the employer and dismissed the action. The Circuit Court ruled the parties’ arbitration agreement intended the arbitrator could exercise the same powers as a judge and found no basis for disturbing the arbitrator’s award. The Court of Appeals affirmed the Circuit Court’s confirmation of the award. The Court of Appeals indicated plaintiff was placed on notice that a discovery sanction was sought, was afforded ample opportunity to submit evidence on his own behalf, and no due process violation occurred.

The Common Law of the Workplace (2d ed., St. Antoine)

The Common Law of the Workplace has helpful discussions concerning adverse inferences. The Common Law of the Workplace indicates the following concerning adverse inferences.

§ 1.14. Subpoenas

Arbitrators, the AAA under its rules, and, in some jurisdictions, attorneys can sign subpoenas for persons and things to demand their presence at the arbitration hearing.

Comment:

... If subpoenaed material is not turned over by a party, or if a subpoenaed witness controlled by a party-such as a supervisor or management official-does not appear, the other party can either enforce the subpoena in court or ask the arbitrator to draw adverse inferences against the offending party. … Id. at pp. 12-13. Emphasis in original.

§ 1.45. Nonappearance of Subpoenaed Witnesses

Comment:

... [I]f the witness is within the control of a party, an alternative method of “enforcing” a subpoena is to ask the arbitrator to draw adverse inferences against the party that did not bring the witness after it is proven a subpoena was properly served. Id. at p. 30. Emphasis in original.

Abrams, Inside Arbitration (2013)

Inside Arbitration reviews adverse inference issues in labor arbitration and states:

If a witness refuses to answer a proper question, a party can ask the arbitrator to direct the witness to answer. The arbitrator cannot order the witness to answer and hold him or her in contempt for not answering, as would a trial judge. If the witness still refuses to answer, the arbitrator properly presumes that the testimony would not have been favorable to the party who called the person as a witness. Id., p. 139. ...

... If the missing witness appears to the arbitrator to have played a critical role in the events raised in the grievance, the neutral will draw a negative inference that the missing witness would not have testified in support of the claim. Id., p. 147. ...

... [A]rbitrators will generally draw an adverse inference from the fact that the grievant does not offer his or her side of the story directly to the arbitrator. That does not mean that management must prevail if the grievant does not testify. It means, rather, that an arbitrator expects to hear from the accused party. … Id., p. 215. Emphasis added.

Nolan, Labor and Employment Arbitration (1998)

Labor and Employment Arbitration contains a helpful discussion concerning adverse inferences. Id., p. 225-226. Nolan indicates, in part:

As a practical matter, arbitrators cannot force a reluctant employee to testify. They may issue a subpoena but enforcing a subpoena requires court action. Arbitrators can and frequently do draw adverse conclusions from a failure to testify  … . Id., p. 225.

... Most arbitrators do draw negative inferences... . They are particularly likely to do so when the reluctant employee faces no risk of a subsequent criminal proceeding.  … Id.

Conclusion

The use of adverse inferences is alive and well in labor arbitration. Adverse inference issues can arise from failure to call a relevant witness, produce relevant documentation, silence, or the destruction of evidence.

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Lee Hornberger is a member of the National Academy of Arbitrators. He is a former chair of the State Bar’s ADR Section, Editor Emeritus of The Michigan Dispute Resolution Journal, a former member of the SBM’s Representative Assembly, a former president of the Grand Traverse-Leelanau-Antrim Bar Association, and a former chair of the Traverse City Human Rights Commission.
He is a member of the Professional Resolution Experts of Michigan, and a Diplomate Member of The National Academy of Distinguished Neutrals. He has received the Distinguished Service Award, the George Bashara Award, and Hero of ADR Awards from the SBM ADR Section.

Bob Woodward, Washington Post associate editor, journalistic hustler, and huckster is back.

Bob Woodward, Washington Post associate editor, journalistic hustler, and huckster is back.

This time with a book titled “War,” in which he claims Donald Trump, after leaving the White House, called Vladimir Putin seven times and sent him COVID kits which would protect the Russian leader.

As usual, Woodward uses anonymous sources, except this time he mentions only one source and admits, according to The New York Times, he could not confirm the information with anyone else.

The Times stated 20 members of the career intelligence community as well as President Biden and former Trump administration officials had no knowledge of any contacts between Trump and Putin.

In the book, as he always does, Woodward uses direct quotes to report on controversial issues when no official transcripts are available. He has never explained this violation of journalistic ethics.

At one point, when President Biden’s son, Hunter, came into the room and chatted with his father, the President just “leaned back in his chair, closed his eyes and sighed.”  We can assume Woodward uncovered this information for a secret vault in the White House.

The book also “reveals” profane-laced statements made by Biden when discussing Israel’s Prime Minister Benjamin Netanyahu. At one point, we are told, he called Netanyahu a “f---- liar.”

We will have to take Woodward at his word.

This book follows one called “Peril” (co-authored with Robert Costa) in which Woodward states Army General Mark Milley, the chairman of the Joint Chiefs of Staff, called his counterpart in China, General Le Zuocheng, to assure him that he (Milley) would alert him if the U.S. planned to attack China.

Before I go on, is there anyone reading this who believes that the highest-ranking U.S. military official who spent 40 years in the military, would undermine the president and the country by providing such a warning and vital secret information of a surprise attack to an arch-enemy?

I did not think so. Indeed, when asked during a congressional hearing if he would do that, Milley responded under oath, “Of course, I wouldn’t,” adding, “My oath is to support the Constitution of the United States of America against all enemies foreign and domestic.”

Woodward also tell us that despite Milley’s assurances, General Li “remained unusually rattled.” Since no source is cited, we must assume that Woodward was sitting in Li’s office in China when Milley made the call.

Throughout the years, Woodward has violated journalistic ethics, not only with his use of anonymous sources or direct quotes that cannot be proven, but also he frequently reported on what officials were “thinking” in meetings they attended decades earlier. At night, I cannot even remember what I “thought” at breakfast.

But I must give Woodward credit for being shrewd in convincing officials to talk to him off-the-record. His sources understand if they answer his questions, they will not have to worry about being implicated in the subjects Woodward explores because he cannot divulge their identities. Woodward cannot criticize his sources even if they are responsible for the very crises Woodward investigates. They have protection.

Woodward knows all that and he exploits this relationship expertly.

In one case, Woodward did reveal a source. In 1985, he said that the late Supreme Court Associate Justice Potter Stewart was his primary source for his book, “The Brethren,” which dealt with the court.

Woodward did so after Stewart died, when the man could not defend himself.  Not only did Woodward violate the ethic of keeping sources secret -- you never reveal sources -- but his revelation can only be described as ugly, mean-spirited and self-serving. How does one point a finger at a man after his death?  What does that say about character?

Woodward’s career has been rampant with his questionable reporting.

Let’s review another major case involving Woodward’s book, “Veil: The Secret Wars of the CIA, 1981-1987.”

In the book, published in 1987, Woodward claimed that the late CIA Director William Casey confessed to him about illegal arms sales to Iran in what was called the Iran-Contra scandal.

Casey, at the time, was in the hospital, paralyzed and gravely ill following brain surgery, but Woodward claimed he managed to visit Casey in his hospital room despite strict security.

“You knew, didn’t you?” Woodward wrote, inquiring whether Casey was aware that funds from the sale of arms to Iran were being diverted to the Nicaraguan contras. “His head jerked up hard,” Woodward wrote. “He stared, and finally nodded yes.”

“Why?” Woodward said he asked.  Casey replied faintly, “I believed.”

Casey’s family and intelligence officials all said it was impossible for Woodward to have avoided security to gain access into Casey’s hospital room.

At the time, Time Magazine observed: “It was a perfect ending for Woodward’s dramatic spy saga. Too perfect in the view of some…In familiar Woodward style, ‘Veil’ reads as much like a novel as a work of journalism, with scenes, dialogue and characters’ thoughts re-created. Woodward says he talked to more than 250 people, but his revelations are not directly attributed to specific sources.”

When Woodward’s boss, the late Washington Post Executive Editor Ben Bradlee, spoke at the Detroit Press Club years ago, I asked him how Woodward gets away with his “journalistic compromises.” Bradlee admitted, “He [Woodward} takes some liberties.”

The major question is: How did Woodward become such a hero in journalism? Newsweek Magazine, in examining Woodward’s work, asked that question in a 2013 article headlined: “The Myth of Bob Woodward: Why Is this Man an American Icon?”

No one in the business has ever answered that.

(Full disclosure: I have not read “War.” I don’t read much fiction. This column is based on news stories discussing the book’s release due this week).

But I must confess that I am indebted to Woodward. When I was still teaching at Wayne State University, he provided me with lots of material for my classes on ethics in journalism.


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Berl Falbaum is a long-time political journalist and author of several books.

This column will be described as un-American.  I expect accusations of being a communist, and anticipate other unprintable attacks.
So be it…

This column will be described as un-American.  I expect accusations of being a communist, and anticipate other unprintable attacks.

So be it…

Now that the football season is well underway, did you know:

Seven football players in their teens died just in August directly or indirectly from football injuries.

The National Center for Catastrophic Sport Injury Research has reported that there were 16 deaths of young football players in 2023.

The reaction in the country?  None.  Where are the headlines? Where is the outrage?  How can we accept such a death toll in favor of Friday Night Lights and Saturday and Sunday games?

It is inexplicably and condemnable that we continue to cheer enthusiastically what can only be described as “organized mayhem” on a field.

Don’t take my word for it.  The legendary Green Bay Packers coach, Vince Lombardi, observed when someone described football as a contact sport: “Football isn’t a contact sport.  It is a hitting sport.  Dancing is a contact sport.”  Then he added: “Football is a sport for madmen.”

At least Lombardi was candid about the sport.  No, “All sports have risks.  Players learn sportsmanship.  Learn to be a team player.”  I am sure you have heard it all.

Or consider the following from Bob Costas, the former NBC sports announcer now working for Turner Sports. Costas, who I consider the most intellectual and articulate of sports analysts, has characterized football as “inherently violent and unsafe” and “unacceptably brutal.”   

Notice the adjective “unacceptably.” We have not only accepted the unacceptable but we have embraced it enthusiastically.

When, on occasion, I watch a game with my grandchildren, I continually wonder how players get up from the turf following each play after receiving bone-crushing tackles from 300-plus-pound behemoths who bench press 400-500 pounds without breathing hard.

Much is written about making the sport safer by reducing injuries with improved helmets and other equipment, and better training.

But you can’t make the game safe when 22 men -- 11 on a side -- hurl and smash their bodies at each other, sometimes at full speed.  You cannot expect a player, running through the line made up of a ton of muscle, to escape serious consequences, if not immediately, then later in life.

It can never be “safe” when these muscle men are trained to hit opponents as hard as possible to stop a runner or clear a path for their own offensive backfield.

It can’t be made safer, not when one of the major objectives of the game is to cause players to fumble by hammering them as hard as possible, and make him think twice about the next time he has the ball.  From little league to the majors, players are taught to hit and hit harder.

There are special drills that teach players how to inflict “punishment”, and the Internet posts, with admiration, the hardest hits in football history.  They are listed as “must see.”

When a player delivers an especially pulverizing tackle, he often stands above his “victim,” pounding his chest while he receives high-fives from teammates, congratulations from coaches and fans go wild.

Violence is an integral part -- I am tempted to say the primary component -- of the game.  It is the major attraction.  

In January 2023, the country briefly reflected on the dangers of the game when Damar Hamlin, a safety for the Buffalo Bills, suffered cardiac arrest and collapsed during a game. Fortunately, he recovered.

But public concern quickly abated with a quick, uninterrupted return to business-as-usual.

Ultimately, of course, it is a matter of money.  Football is a multi-billion-dollar businesses.

The University of Michigan, for example, earns $75 million from its football program.  It is the third most profitable program in college football.

Jim Harbaugh, U-M’s former football coach, earned a whopping $7.5 million annually while his boss, the U-M president, received an annual salary of just under $1 million.  That tells us whom the university values more.

They exploit the bodies of talented athletes to fill their coffers and increase salaries.  And winning football games does that.

The pros are rewarded with million-dollar contracts and high school players are wooed with generous scholarships.  Of course, the adoration of fans is also an aphrodisiac for the ego.

In many cases, university coaches “bend,” if not break, recruiting rules to attract the best football talent that will assure a winning season -- and greater profits. That’s like getting approval for a patent in industry.

As I wrote in a previous column on this subject, for those who deny that violence is the attraction, I have a recommendation for making the game safe.  

Under my plan you can still enjoy all of football’s athleticism -- the passing, running, catching, kicking, etc. -- but the serious injuries now suffered by players would be dramatically reduced, if not eliminated.

Make it touch football.  When my wife read this column in draft form, she asked: “Are you really going to go public with this?  Think of the family.”  Then I saw her make sure the front door was locked.

In recent years, five states have introduced legislation to ban youth tackle football.  None is expected to pass given intense political pressure from special interest groups.

OK, I am a sour-puss, a kill-joy, a Neanderthal, if not a communist.  

So, let’s talk to the parents of those who died playing football and/or to players, active or retired, who are suffering from dementia, chronic traumatic encephalopathy (CTE, a neurodegenerative brain disease), or are dealing with a variety of serious spinal injuries, mangled knees or are drug addicts given constant use of pain killers.

A friend who knew a very famous retired professional quarterback told me the former player slept strapped on a board at a 45-degree angle, to deal with the unrelenting pain.

I met a man while undergoing rehabilitation myself for some back problems, who could barely walk. Why? He told me he was a retired linebacker for the Green Bay Packers.

Given the reaction I expect, I am wearing sunglasses, a wig, and a fake nose and mustache.


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Berl Falbaum is a long-time political journalist and author of several books.