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Do you want to have greater scheduling flexibility? Do you want to choose your own clients? Do you want to make money for yourself rather than someone else? 

Do you want to have greater scheduling flexibility? Do you want to choose your own clients? Do you want to make money for yourself rather than someone else? 

If you answered any of these questions in the affirmative, then perhaps you want to become a sole practitioner.

As someone who practiced for nearly 19 years on my own, I can attest to the benefits and detriments of being a sole practitioner. 

There are several things that should be considered, however, before taking the leap.

It is impossible to be a successful sole practitioner unless a lawyer is also a good administrator. In my time as a sole practitioner, I knew that I liked trying cases, loved researching the law, and loved writing briefs. However, what I strongly disliked was running my own accounting, ordering supplies, deciding which internet or phone plan was best for my business, and figuring out which computers, photocopiers, and fax machines were best for me to complete my work. As a sole practitioner, a lawyer needs to be an expert on all these things.

Furthermore, unless a lawyer is entering sole practice with a great deal of start up cash, that lawyer is also going to be their own secretary, bookkeeper, and law clerk. Lawyers can only bill for time spent on a client’s case, which means that as a sole practitioner, a lawyer is spending time working on many non-billable matters.

Then, a lawyer must consider where they are getting clients. If an attorney breaks from a firm, there is no clear guidance under the Michigan Professional Rules of Conduct as to whether the client belongs to the firm or the attorney who serviced the client. Therefore, it is imperative once a lawyer chooses to leave the firm and go solo, that both the lawyer and the law firm discuss the lawyer’s departure with each client that the lawyer services. Each client has the right to decide which lawyer the client wants to handle its affairs. Interfering with the client’s right to choose their own counsel violates MRPC 1.16. For more information regarding changing law firms, a lawyer should consult the State Bar’s article, “Changing Firms: Ethical Responsibilities for Lawyers and Law Firms.” 

Regardless of whether a lawyer is starting from scratch or continuing to service clients from their prior law firm, a sole practitioner will not survive without developing a steady stream of clients. Marketing is essential for a sole practitioner. In this day, one cannot survive without a web presence. So, who is going to build your website, do search engine optimization, or advertise for the sole practitioner? All these things can be costly.

However, there are marketing opportunities that can be done for minimal cost. One easy method is to network. Networking can be accomplished by joining associations, getting involved with the association committees, and going to association events.

Another free marketing opportunity is social media. A lawyer can utilize Facebook, TikTok, and even Reddit. However, if one markets in this way, a lawyer needs to make certain there is compliance with MRPC 7.1 – 7.5.
A law practice can also be built by accepting court appointments. This approach might be time-sensitive and have some minimal costs associated with it, as there may be educational requirements, and the classes required to get on the court-appointed lists may only be offered periodically. 

On the other hand, this strategy can open up a plethora of new clients (albeit at reduced fees), and other networking opportunities in fields such as criminal misdemeanors, felonies, juvenile law, guardianships and conservatorships, and mental illness cases. It also is a great way to get in front of judges and build a rapport with the court.

One drawback to being a sole practitioner is, what does a sole practitioner do when they have to be in two courts at once? Can you manipulate the cases with the courts that you can be at one court later than the other, or does the lawyer need to spend time trying to get one or the other courts to adjourn the case? What happens if neither court will move the case? Does the sole practitioner know someone whom they trust to handle the case when the sole practitioner cannot? How do you plan vacation time around potential court dates? Remember, if the sole practitioner is not working, there is no money coming into the practice. These are all common problems for a sole practitioner and must be considered before taking the leap into the sole practice world.

Most importantly, lawyers have an ethical duty to our clients that lasts not only beyond their deaths but the lawyer’s own death. All Michigan attorneys in private practice are required to name a person with knowledge of their practice and designate an interim administrator or enroll in the State Bar of Michigan Interim Administrator Program. The purpose of this rule is to allow for the smooth transition of a law practice and its clients when a lawyer resigns, is disbarred, suspended, disappears, is imprisoned, has become disabled or incapacitated, or died. I have encountered this situation twice in one year alone where opposing counsels have died and, in one case, had not named anyone to administer the practice. For the protection of the solo’s clients, transition planning is an essential step in creating a sole practice – knowing who you could trust with your clients when your practice ends.

Becoming a sole practitioner can be extremely rewarding. The ability to leave the office for personal activities is quite enticing. Personally, I made numerous events that I might not have been able to attend if I was working in a large firm. However, being the sole person responsible for every facet of the practice also meant that I worked numerous times past midnight and on weekends without compensation because non-legal things (or even legal things) had to get accomplished.

Therefore, before making the leap, it is important that one considers all the other aspects of sole practice before leaving the comfort of a firm.

Stuart Collis, of Collis, Griffor & Hendra, is an expert in collections and has over two decades of civil litigation, family law, and criminal law experience. Collis is a trained mediator and has extensive experience with case evaluation procedures. He has also served on a number of state and national organizations, including NARCA, WCBA, MCBA, and the Michigan Department of Agriculture’s Companion Animal Committee. Collis has been published extensively, including several republications. He has created and presented numerous educational sessions for interested organizations.

Reprinted with permission from the Washtenaw County Bar Association newsletter Res Ipsa Loquitur.

This article serves as the twelfth and concluding installment in a comprehensive 12-part series on domestic arbitration, designed to provide a clear and practical guide through every stage of the process. In this edition, Enforcing and Collecting Arbitration Awards: The Final Step Toward Justice, we examine the legal framework and procedural steps involved in enforcing an arbitration award and securing compliance. With this final chapter, we bring the series on domestic arbitration to its conclusion. An arbitration award, no matter how well reasoned or elegantly written, achieves its true purpose only when it is enforced. The journey from hearing to award is the heart of arbitration—but enforcement is its lifeblood. Without it, even the most meticulous proceeding risks becoming a paper victory.

From Award to Judgment: Understanding the Legal Bridge

Once an arbitrator issues a final award, the prevailing party’s focus must shift swiftly from persuasion to enforcement. In domestic arbitration, this usually begins with confirming the award in court. Under Sections 9 through 13 of the Federal Arbitration Act (FAA) and comparable state statutes, a party may petition the appropriate court—typically a circuit or federal district court—to confirm the award and have it entered as a judgment. Timing is critical. The FAA provides a one-year window from the date of the award to file a petition for confirmation, though prompt action is always best practice. A court’s confirmation transforms the award into a judgment “having the same force and effect as any other judgment,” enabling collection by the usual means—garnishment, liens, or execution. Courts have a narrow role at this stage. They are not appellate bodies for arbitrators. Unless a statutory ground for vacatur or modification exists—such as evident partiality, misconduct, or excess of authority—the award must be confirmed. The judiciary’s restrained posture underscores a fundamental principle: finality is the crown jewel of arbitration.

The Respondent’s Resistance: Motions to Vacate or Modify

A losing party may seek to vacate or modify the award within three months of its issuance under Section 12 of the FAA. Courts, however, apply these provisions narrowly. The burden is steep, and the evidentiary threshold high. Common missteps include mere disagreement with the arbitrator’s reasoning or an attempt to re-argue the merits—grounds that never justify vacatur. For practitioners, this underscores the importance of procedural precision. Ensuring that the record reflects fairness, notice, and an opportunity to be heard can fortify an award against later attack. An enforceable award is not born in the courthouse—it is built during the arbitration itself.

The Mechanics of Confirmation: How to File and Proceed

A typical confirmation petition includes: Verified petition or motion citing the FAA (or state act); Copy of the arbitration agreement and the final award; Affidavit of service on the opposing party; Proposed judgment order for the court’s signature. Filing in the jurisdiction where the arbitration occurred—or where the losing party or its assets are located—strategically positions the prevailing side for efficient enforcement. Some courts allow summary procedures, while others may set a brief hearing. Unless a valid opposition is filed, confirmation is usually granted as a matter of course. When drafting, counsel should remember that courts favor succinct, fact-based petitions that demonstrate procedural regularity and compliance with deadlines. Over-argument can be counterproductive; credibility, not verbosity, wins the day.

From Judgment to Collection: Turning Paper into Payment

Once confirmed, the award takes on new life as a judicial judgment. Enforcement then proceeds under the state’s civil enforcement mechanisms—typically those applicable to any money judgment. Practical tools include: Writs of garnishment or attachment against bank accounts, wages, or accounts receivable; Judgment liens recorded against real property; Execution orders allowing seizure and sale of non-exempt assets; post-judgment discovery to identify hidden or transferred assets. Creative enforcement may also involve negotiating payment plans, obtaining consent judgments, or leveraging reputational incentives when the opposing party values confidentiality or ongoing business relationships. In short, collection requires both legal precision and strategic diplomacy. The tone of enforcement—firm yet professional—often determines how swiftly compliance follows.

State vs. Federal Considerations

In Michigan and most states, the Uniform Arbitration Act supplements federal provisions, allowing confirmation, modification, or vacatur through local courts. Counsel should always verify which statute governs the arbitration agreement and whether it contains any venue or procedural requirements. For example, while the Federal Arbitration Act (FAA, 9 U.S.C. § 9) requires a motion to confirm an arbitration award to be filed within one year, Michigan’s Uniform Arbitration Act (MCL 691.1702) imposes no such deadline. However, certain procedural distinctions such as methods of service, filing requirements, or the form of judgment entry can differ. Navigating this dual framework effectively ensures that an award is not lost in a procedural gap between federal and state law.

Beyond Confirmation: Interest, Costs, and Attorney Fees

A confirmed award may include post-judgment interest, calculated under the applicable state or federal rate, to compensate for delay in payment. When contracts or statutes provide for attorney fees or collection costs, the prevailing party should expressly request them in the petition. Courts often respect such contractual provisions, viewing them as part of the bargained-for expectation of the parties. For example, an arbitrator’s award granting $100,000 with a contractual interest clause at 12% continues to accrue interest until paid. A delay of even a few months can substantially increase the obligation—a quiet yet powerful incentive for compliance.

The Symbolism of Enforcement

Enforcement is not merely procedural; it is symbolic. It reaffirms the legitimacy of arbitration as a binding and respected process. Each confirmed award strengthens the ecosystem of alternative dispute resolution by signaling to the legal community that arbitration delivers not just decisions—but results. As one federal court aptly stated, “An arbitration award is not an invitation to negotiation; it is the end of the debate.” The power of enforcement ensures that endures. This twelfth and final installment mark the culmination of our exploration into the practice and procedure of domestic arbitration. From the first notice of arbitration to the final act of enforcement, we have traced the lifecycle of disputes resolved outside the courthouse yet within the rule of law. Enforcement is where theory meets consequence. It is where the neutral’s pen finds its echo in the judge’s gavel and it reminds us that arbitration’s promise—efficiency, finality, and fairness—means little without the certainty of compliance. To all who have followed this series: may your next award not only be well-reasoned, but well-respected—and, most importantly, well-enforced.

Harshitha Ram is an international disputes attorney, arbitrator, mediator, and lecturer in law. She is the President of the Global Arbitration Mediation Academy (GAMA), Chair of the ADR Section of the DBA, and the Co-Chair of the ABA Arbitration Committee. To learn more or connect, visit: www.harshitharam.com | www.adracademy.us

As of October 1, 2025, Michigan employers with 10 or fewer employees (“small businesses”) must begin providing paid sick time under the Earned Sick Time Act (ESTA). Larger employers (11+ employees) have been covered since February 21, 2025; the small employer effective date was intentionally delayed to give the smallest operations time to prepare.

As of October 1, 2025, Michigan employers with 10 or fewer employees (“small businesses”) must begin providing paid sick time under the Earned Sick Time Act (ESTA). Larger employers (11+ employees) have been covered since February 21, 2025; the small employer effective date was intentionally delayed to give the smallest operations time to prepare.

Who counts toward “10 or fewer”?

Headcount is calculated broadly. Employers must include all employees across the United States and its territories—full-time, part-time, and temporary workers, including those supplied by staffing agencies. Employers who reach 11 or more employees for 20 or more workweeks in the current or prior calendar year are treated as a larger employer through the end of that year and the next.

How sick time accrues and can be used

Under ESTA, employees accrue one hour of paid sick time for every 30 hours worked. Small employers may limit both carryover and use to 40 hours per year (larger employers use a 72-hour cap). Unused paid sick time rolls over year to year, up to 40 hours for small employers.  

Alternatively, employers can frontload sick time at the start of each year to avoid tracking accrual and carryover. For small employers, that means providing at least 40 hours up front for full-time employees, with prorated amounts for part-time staff (subject to specific notice and “true-up” requirements).  

For small employers, accrual begins the later of October 1, 2025 or the employee’s start date. Employers using the accrual method may impose a waiting period of up to 120 days before new hires (on or after February 21, 2025) can use accrued time; during the waiting period, hours still accrue. Frontloaded time is available for immediate use and may not impose a waiting period.

What counts as “sick time” under the law

ESTA leave is broadly available for an employee’s own illness or preventative care, care for a family member, and certain needs related to domestic violence or sexual assault. Employers may track usage in one-hour increments (or the smallest timekeeping increment) and must compensate time off at the employee’s regular hourly rate (exclusive of overtime premiums, bonuses, commissions, tips, and holiday pay).

PTO policies can satisfy ESTA—if they meet or exceed the law

Employers already offering a paid time off (PTO) bank can use it to comply so long as it is at least as generous as ESTA (for small employers, at least 40 hours per year) and can be used for the same purposes on the same timelines. Many small employers will find this approach simplest, but review accrual, caps, and carryover to ensure alignment.

Required notices and posting

By 30 days after the February 21, 2025 amendments (or at hire, whichever is later), employers must provide written notice describing ESTA rights, the measurement “year,” usage rules, anti-retaliation protections, and the right to file a complaint. Employers must also display the state workplace poster in English, Spanish, and any other language that is the first language for 10% or more of the workforce if the state has provided a translation.

Action checklist for small employers (=10 employees)

1. Confirm headcount status. Count all U.S. employees—including temps and staffing-agency workers—and document weekly totals for the 20-week threshold analysis.  

2. Choose your method: accrual (1 per 30 hours, cap/use/rollover at 40) or frontload (40 hours for full-time; prorate part-time). Frontloading simplifies tracking but requires careful onboarding notices and potential true-ups.  

3. Align your PTO policy. If you use a general PTO bank, ensure it provides at least 40 hours and can be used for ESTA-covered reasons without extra hurdles.  

4. Set a waiting-period rule (optional). If using accrual, decide whether to apply up to 120 days for new hires (who still accrue during that period).  

5. Update payroll and timekeeping. Configure accruals or frontloads, carryover limits, and usage caps, and pay at the correct regular rate.  

6. Issue required notices and post the state poster in the necessary languages. Train managers on anti-retaliation and consistent administration.  

7. Calendar policy start date: If using accrual for eligible employees, employers should have begun no later than October 1, 2025 (or date of hire, if later) and be prepared to accept covered uses immediately if frontloaded.
Michigan’s Department of Labor and Economic Opportunity (LEO) maintains plain-language guidance, including a February 27, 2025 slide deck that summarizes the 40-hour small-employer caps, the October 1, 2025 compliance date, frontloading options, notice requirements, and more. For complex scenarios like fluctuating headcount, multi-state operations, or collective bargaining agreements, employers should seek out legal counsel to tailor a policy and rollout.

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Zana Tomich is co-founder of Dalton & Tomich, a versatile Detroit-based law firm, where she works with lending institutions and privately held businesses and nonprofits, often in a general counsel capacity.

As new lawyers, we were taught in law school how to use technology to our advantage. However, this means there are also ways that the use of technology in the legal profession can go awry. Artificial Intelligence (AI) is the most prominent example of a technology that has many helpful uses, and some pitfalls.

As new lawyers, we were taught in law school how to use technology to our advantage. However, this means there are also ways that the use of technology in the legal profession can go awry. Artificial Intelligence (AI) is the most prominent example of a technology that has many helpful uses, and some pitfalls.

Artificial Intelligence (AI)

Artificial intelligence refers to computer systems that can perform complex tasks usually done by humans, such as reasoning, decision-making, creating, drafting, etc. Because of AI, attorneys can produce better legal work in fewer hours, benefiting clients greatly. Some lawyers hesitate to incorporate AI into their practice, partly because AI raises ethical questions and risks, such as compromising confidential client data, or waiving attorney-client and attorney work product privileges.

Recently, lawyers and law firms have gotten sanctioned for failing to check case citations generated by AI. In June 2023, two New York attorneys filed a brief written by ChatGPT, which included citations to six non-existent cases and erroneous quotes. It is a cautionary tale that led to sanctions and public scrutiny.

In February of 2025, a federal court fined an attorney for “hallucinated” AI citations. When AI generates plausible but false text, this is a ‘hallucination.’ The court found that lawyers have an ethical duty to check the cites used in their legal filings and “read the case to ensure the excerpt is existing law to support their propositions and arguments.” Judge Kelly H. Rankin, the U.S. District Court for the District of Wyoming. Wadsworth v. Walmart Inc., D. Wyo., No. 2:23-cv-118-KHR

On July 29, 2024, the ABA Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 512, Generative Artificial Intelligence Tools. In Formal Opinion 512, the ABA stated, 

“To ensure clients are protected, lawyers using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.” 

I have compiled a list of key do’s and don’ts below to help guide you through best practices.

Do:

1. Start Using AI with Simple Tasks: To familiarize yourself with AI tools before applying them to more complex legal work, begin with low-stakes tasks such as document summarization or text editing.

2. Leverage AI for Efficiency: Use AI to legal research, contract review, and predictive analysis tasks.

3. Critically Review Answers: Always validate AI-generated content to align with legal standards and client interests. AI tools are not foolproof and require human oversight to avoid errors or omissions.

4. Maintain Ethical Standards: Adhere to ethical obligations such as client confidentiality, informed consent, and competence when using AI tools.

5. Invest in Training: Gain a basic understanding of how AI works and its limitations.

6. Experiment with Different Tools: Explore various AI platforms, such as Casetext’s CoCounsel, Westlaw Edge, or MyCase IQ, to find the tools best suited to your practice needs.

7. Treat AI as a Tool, not a Decision-Maker: Use AI to assist your thinking, never to replace it.

8. Stay Updated on AI Ethics and Bar Guidance: Regularly check with the State Bar of Michigan and the ABA for updates, opinions, and rules involving AI and legal practice.

Don’t:

1. Rely on AI for Legal Research Without Independent Verification: Always verify the facts and conclusions yourself. AI tools can assist, but the final responsibility lies with you.

2. Submit AI-Generated Content Without Review: As discussed above, copying and pasting from AI without proofreading or fact-checking can lead to ethical violations and sanctions.

3. Input Confidential Client Data: Treat AI like any third-party service provider. Avoid inputting sensitive client data to adhere to ethical standards such as client confidentiality and informed consent.

4. Misunderstanding AI’s Limitations: New lawyers might assume AI can handle complex legal reasoning or strategic decision-making. However, AI tools are best suited for repetitive tasks like document review or research, and cannot replace nuanced legal judgment or human expertise.

5. Assume AI is Always Neutral or Unbiased: AI tools can reflect biases in their training data.

6. Ignore It: Lawyers and firms that resist AI will fall behind.

7. Stop Learning: The best lawyers will be the ones who keep adapting and staying informed.

AI is a powerful tool for legal professionals, but it does not replace the need for legal expertise and judgment. While it can streamline processes and enhance efficiency, lawyers must remain vigilant about their ethical duties and responsibilities.

Natalie Lennon is a health law attorney with a background in regulatory compliance, healthcare transactions, and administrative law. 
With an LLM in health law from Loyola University Chicago School of Law, she advises providers and institutions in navigating federal and state healthcare regulations. Before focusing on health law, Lennon gained experience in general practice, which informs a well-rounded, strategic approach to client advocacy. 
She is admitted to practice in Minnesota and Michigan and is active in professional organizations focused on health law and policy. Lennon values collaboration across legal disciplines and is committed to delivering practical, business-oriented solutions. She can be reached at nlennon@chapman-lawgroup.com or at 248-644-6326.

Reprinted with permission from the Washtenaw County Legal News newsletter Res Ipsa Loquitur

People created governments to advance the public interest, and they elect the leaders of those institutions. These public servants use their best judgment to tackle the problems important to voters.

People created governments to advance the public interest, and they elect the leaders of those institutions. These public servants use their best judgment to tackle the problems important to voters.

But elected officials are also people like the rest of us — often seeking the easy way. This puts people at a disadvantage when their interests collide with the government’s. It’s simply easier for officials to take the government’s side against the citizens.

This matters because elected officials are many. In addition to representatives at the state and federal level, we elect school board members, city councilmembers and mayors, village councilmembers and presidents, township trustees, mayors, clerks, treasurers, library boards, county commissioners, drain commissioners, community college trustees, select state university board members, state board of education members, and likely more that I am forgetting.

Elected officials are responsible for guiding and operating their government unit. One universal fact becomes clear to everyone: It’s easier to run the unit when revenues increase faster than expenses. It’s not fun to make tough decisions on what might need to be cut. This is one reason why there’s always a loud chorus of government officials calling out for more revenue.

This tendency isn’t just in government, though. As Mr. Micawber observed in Charles Dickens’ David Copperfield, “Annual income twenty pounds, annual expenses nineteen pounds and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”

It’s just easier to operate governments when they have more money. Consider the property tax elections to build and improve school buildings. Taxpayers would rather not have to pay more to get something that could be accomplished without these taxes. Schools can use their existing resources to build and maintain their own buildings without special millages. In fact, this is how charter schools in Michigan operate, as they are not allowed to ask local taxpayers to pay for their buildings.

Nearly all school boards opt not to use their existing resources for building improvements and ask voters to approve more taxes instead. That way, the district will have more total revenue to spend, and the tough choices are avoided. School officials’ lives are easier that way.

It is harder to run a school when administrators have to economize on existing resources to pay for buildings. Some of those choices may lead to consequences that local voters would find worse than paying more in property taxes. But the incentives faced by elected officials tip the scales toward asking taxpayers to economize on their budgets rather than asking districts to economize on theirs.

That’s why local tax questions require voter approval these days. New local taxes are required by the 1978 Headlee Amendment to be approved by voters. It ensures popular support for local taxes as a counterweight to the tendency for local elected officials to consistently seek higher revenue.

It makes sense that officials want more money for their agencies. Transit officials argue for more transit funding. School groups argue for more school funding. Local government officials argue for more local government revenue. None of this is surprising. Who else would you expect to make these claims?

One might then wonder why, then, Republican legislators and governors sometimes talk about tax cuts. Surely that would make their jobs managing the state government harder. Yet people hear a lot about cutting costs of government from conservatives.

While tax cuts reduce government revenue from what it might otherwise be, governments that cut taxes tend to have extra money to spare. When the majority of states cut taxes after the pandemic, state revenues came in beyond expectations. Although many taxes were reduced, state governments increased total spending from $2.1 trillion in fiscal year 2018-19 to $3.1 trillion in fiscal year 2023-24, a 19% increase above inflation.

Tax cuts are easier to deliver when revenue is up. Lawmakers can afford to let people keep more of their money when they themselves don’t have to spend less.

The lure of taking the easy way is a powerful force that even affects elected officials who want to let taxpayers keep more of their own money. It’s a tendency that voters ought to keep in mind next time elected officials ask for a tax hike. Their elected representatives might be more interested in securing an easy job than in protecting the public interest.

   ___________________

James M. Hohman is the director of fiscal policy at the Mackinac Center for Public Policy.

Labor arbitration is a positive alternative to industrial strife, strikes, and work stoppages. Labor arbitration is the result of collective bargaining.

Labor arbitration is a positive alternative to industrial strife, strikes, and work stoppages. Labor arbitration is the result of collective bargaining.

In labor arbitration, the labor union advocate represents the union rather than the employee. The union is the party rather than the employee. The grievance belongs to the union. The advantages with the union being a party includes a balance of power between the union and the employer, greater experience with labor disputes, and an ongoing relationship between the union and the employer. The arbitrator looks at the collective bargaining agreement (CBA) and the common law of the shop.

Law applicable to labor arbitration

The law applicable to private sector labor arbitration derives from the 1960 U.S. Supreme Court Trilogy1.  The Trilogy held that the parties are to submit all grievances to arbitration, not merely those that a court deems meritorious. The Trilogy held that processing even frivolous claims may have therapeutic values in the workplace. The labor arbitrator’s source of law is not confined to the express provisions of the CBA, as industrial common law is equally part of the CBA although not expressed in it. 

The Michigan Supreme Court followed the Trilogy in Kaleva-Norman-Dickson Sch Dist No 6 v Kaleva-Norman-Dickson Sch Teachers’ Ass’n, and Port Huron Area Sch Dist v Port Huron Ed Ass’n.     

The applicability of the Michigan Uniform Arbitration Act (MUAA) to the review of Michigan public sector labor award has not been decided.

The “Code of Professional Responsibility for Arbitrators of Labor-Management Disputes” (“Code”) is the professional code for labor arbitrators. The “Code” has been approved by the American Arbitration Association (AAA), National Academy of Arbitrators, and Federal Mediation and Conciliation Service (FMCS).

Three of the major treatises for labor arbitration are Elkouri & Elkouri, “How Arbitration Works” (8th ed. 2016); Abrams, “Inside Arbitration” (2013); and St. Antoine, “The Common Law of the Workplace” (2d ed. 2005). 

Servicing agencies and arbitrator selection

Typically, the employer and the union select an arbitrator from a list that they obtain from a servicing/administering agency. Three national servicing agencies are the American Arbitration Association,7 the Labor Relations Connection (LRC),8 and the FMCS.9 At the state level, there is the Michigan Employment Relations Commission (MERC).10 In addition, parties can select an arbitrator ad hoc or by having the arbitrator named in the CBA.

Arbitrator neutrality is crucial. Labor arbitrators on FMCS and AAA labor panels cannot serve as advocates for either labor or management. Such arbitrators may still be law professors, neutrals, mediators, or in some cases practice law in other fields, just not as representatives of unions or management in labor relations matters.

Labor arbitrators are generally not required to make extensive disclosures of prior relationships.

LRC Labor Arbitration Rule 10 indicates, “Arbitrators must immediately disclose to The Labor Relations Connection any situation likely to affect impartiality, including any bias. Upon notification from the Arbitrator or any other individual, the parties will be contacted with this information. If a party objects to the Arbitrator remaining on the case, the Labor Relations Connection will consult with the parties and the Arbitrator to determine whether the Arbitrator should be disqualified and shall inform the parties of the decision.”

In labor arbitration, the prospective arbitrator should make appropriate disclosures during the selection process. After selection, there is a continuing duty to disclose.

The “Code” indicates, “Before accepting an appointment, an arbitrator must disclose … any current or past managerial, representational, or consultative relationship with any company or union involved in a proceeding in which the arbitrator is being considered for appointment or has been tentatively designated to serve. Disclosure must also be made of any pertinent pecuniary interest.” 

In labor arbitration, any party may be represented by counsel or other authorized representative. AAA Labor Arbitration Rule 18.16

Evidence rules in labor arbitration

The evidence rules in labor arbitration are not as strict as those in employment arbitration or court litigation.

AAA Labor Arbitration Rule 27 indicates: “The arbitrator shall determine the admissibility, the relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant and conformity to legal rules of evidence shall not be necessary.”

LRC Rule 16 indicates, “Exhibits may be submitted to the Arbitrator as evidence during the hearing process. … The Arbitrator has the sole discretion to determine the order of proceedings. The parties will be given the opportunity to present relevant proofs. The parties may provide any evidence relevant to the dispute and shall provide any additional material required by the Arbitrator. The Arbitrator will determine the admissibility of evidence and the manner in which it is presented.”

The arbitrator may conduct the arbitration in a manner that the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred on the arbitrator includes the power to determine admissibility, relevance, materiality, and weight of the evidence.  

Under the MUAA, an award can be vacated where the arbitrator refused to consider evidence material to the controversy.

Discovery and information gathering in labor arbitration

Formal discovery in labor arbitration is not as robust as in employment arbitration. There are generally no depositions or interrogatories in labor arbitration.  This can help make the process more streamlined and expeditious.  

The grievance procedure in the CBA provides an opportunity for information gathering. The parties should utilize the grievance procedure with the goal of sharing relevant information. The employer has a general obligation to provide information needed by the union for the performance of its duties during the term of a CBA. NLRB v Acme Industrial Co  (“Arbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims.”).

Burden of proof in labor arbitration

The employer has the burden of proof in a discipline case.  Depending on what the discipline is for, the burden of proof could be by the preponderance of the evidence, clear and convincing, or beyond a reasonable doubt. It might not be self-evident as to which party has the burden of proof in situations such as a voluntary quit or a non-disciplinary demotion.

In a contract interpretation case, the union has the burden of proof.

Conducting a successful labor arbitration

“Code”, Part 1, Section A, indicates, “Essential personal qualifications of an arbitrator include honesty, integrity, impartiality and general competence in labor relations matters.” 

There should not be ex parte contacts between the parties and the arbitrator. “Copies of any prehearing correspondence between the arbitrator and either party must be made available to both parties.”24 This can create a tension when there is a request for a signed subpoena from an arbitrator. Some arbitrators will entertain an ex parte request for a signed subpoena. Others will not. Professionalism and integrity are crucial. Listening is important.

LRC Rule 31 provides, “The National Academy of Arbitrators’ Code of Professional Responsibility for Arbitrators of Labor-Management Disputes is incorporated by reference and Arbitrators selected through The Labor Relations Connection are subject to this Code.”

The advocates should carefully prepare for the hearing. This includes understanding the case, helping to draft the issue language,26 and presenting an appropriate opening statement. There will be examination of witnesses. There will be closing arguments or post-hearing briefs. The award is usually due 30 or 60 days after the arbitrator receives the last filed brief.

Audience of a labor arbitration award

The labor arbitration award is written for a number of audiences. The award should address all the arguments made by the losing side. The award should decide the issues raised by the parties. The award should tell the losing party why it lost. The award is also written with the grievant and the workforce in mind. Other potential audiences are the human resource office and management. If the award is to be published (such as in BNA or CCH), the profession, other arbitrators, and future readers become potential audiences. Permission of the parties is needed to publish an award.

The “Code” indicates, “When an opinion is required, factors to be considered by an arbitrator include:  desirability of brevity, consistent with the nature of the case and any expressed desires of the parties; need to use a style and form that is understandable to responsible representatives of the parties, to the grievant and supervisors, and to others in the collective bargaining relationship; necessity of meeting the significant issues; forthrightness to an extent not harmful to the relationship of the parties; and avoidance of gratuitous advice or discourse not essential to disposition of the issues.

The arbitrator can retain remedial jurisdiction over the case after the issuance of the award for the purpose of resolving questions that may arise over application or interpretation of a remedy. “It is widely accepted that an arbitrator may properly retain jurisdiction to resolve remedial problems that may arise in complying with the award.”


Conclusion

For more than 65 years the U.S. Supreme Court Trilogy has provided a successful process for doing labor-management arbitrations. Hopefully that will continue into the future.

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Lee Hornberger is a member of the National Academy of Arbitrators. He is a Diplomate Member of The National Academy of Distinguished Neutrals. He is a former Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, former member of the State Bar’s Representative Assembly, former President of the Grand Traverse-Leelanau-Antrim Bar Association, and former Chair of the Traverse City Human Rights Commission. He is a member of the Professional Resolution Experts of Michigan (PREMi), an invitation-only group of Michigan’s top mediators. He is a Fellow of the American Bar Foundation and a Fellow of the Michigan State Bar Foundation.
He has received the Distinguished Service Award from the State Bar’s ADR Section in recognition of significant contributions to the field of dispute resolution. He has received the George Bashara Award from the ADR Section in recognition of exemplary service. He has received Hero of ADR Awards from the ADR Section.
He is in The Best Lawyers of America 2020 for arbitration and mediation. He received a First Tier ranking in Northern Michigan for Mediation by U.S. News – Best Lawyers Best Law Firms in 2022; and a Second Tier ranking in Northern Michigan for Arbitration by U.S. News – Best Lawyers Best Law Firms in 2022. He is on the 2016 Michigan Super Lawyers lists for alternative dispute resolution. 
He holds his B.A. and J.D. cum laude from the University of Michigan and his LL.M. in Labor Law from Wayne State University. 
His website is https://www.leehornberger.com/