Columns

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:   By Samuel Damren

“The night was so eerily beautiful I purposefully took the long way around the moon-drenched lakeshore, with its gleaming and jagged mounds of ice looking like frozen waves.”

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“Far out over the lake the filmy smoky shafts of the Northern Lights wavered and raced in trailing scarves of light, shifting and melting across the flaming sky in great dripping organ pipes of silent melody.”

These are but two of the poetic descriptions of Michigan’s Upper Peninsula that provided sanctuary and renewal for the young trial lawyer at the center of Robert Traver’s 1965 book, “Laughing Whitefish.”  

Robert Traver was the pen name of John Voelker, a justice of the Michigan Supreme Court 1956-60.  Despite writing more than 100 opinions while on the court, Voelker is best known by his pen name as the author of “Anatomy of a Murder.”  The 1958 book was on the New York Times Bestseller List for 62 weeks and became a celebrated Academy Award nominated movie. 

Upon retirement, Voelker returned to Ishpeming where he continued his literary career and greater passion as an avid fisherman.  Under the pen name of Robert Traver, he would go on to write eight books and numerous essays. 

“Laughing Whitefish” was Voelker’s only historical novel.  It is based on a trio of Michigan Supreme Court cases from the 1880s recognized as a “Michigan Legal Milestone” in 1992.

In 1845, as set forth in the “Milestone” text, Marji-Gesick, an Indian Chippewa chief, was hired by the Jackson Iron Company to identify an iron ore deposit known only to indigenous peoples.  In return for his work, “he was paid with a Certificate of Deposit entitling him to stock in the company.”   

When the mine became profitable decades after Marji’s death, his daughter, Charlotte Kawbawgam, known by her Indian name “Laughing Whitefish,” sought to enforce the ownership interest through a series of court cases and subsequent appeals.  

The company refused to honor her as a lawful heir because “she had been born to one of three women to whom her father had been married simultaneously.”  The progeny of polygamous unions was not recognized as legitimate heirs under Michigan law.  

Notwithstanding, in a “landmark Michigan Supreme Court decision acknowledging that tribal laws and customs govern the legal affairs of Native American families,” the court “concluded that since the marriage was valid under Chippewa law, it must be recognized by Michigan’s courts” and the validity of her claim was upheld.

“Laughing Whitefish,” the novel, received favorable reviews albeit with a few reservations.  New York Times critic Allen Drury suggested that “Mr. Traver might have judiciously eliminated an almost impenetrable Cornish dialect” of a local U.P. bartender from the introductory chapter.  Noting that the book “becomes a constant delight” thereafter, Drury missed a key aspect of the bartender episode.

The bartender’s Cornish dialect is a great chore for any reader to work through, but it set the table for the true story Traver was about to tell.  To penetrate the cultural barrier at the heart of “Laughing Whitefish,” readers would not only have to learn Indian customs, but reorient perspective to understand the impact that “white law” had on Indian culture.

By first presenting the reader in Chapter 1 of the novel with the chore of trying to understand a “white” dialect that could be viewed as equally impenetrable as Indian culture, Traver invited readers to reassess cultural barriers.

The prose in Chapter 2 of “Laughing Whitefish” is the complete opposite.  There, we learn about Willy Poe, the 26-year-old law school graduate who moved to the Upper Peninsula alone and without references. 

Lawyers will see themselves in Willy’s “doubt and soul-searching” whether law should have been his chosen career.  Having been recently fired from his first job, lawyers will also understand the now diminished prospects he faces and fretful fears.

Then, in a moment, those concerns are upended when the most significant case that he, or any practitioner might ever land, finds its way to his doorstep.  

Why did that happen?  Because no lawyer in the Upper Peninsula other than William Poe, Esq. would be foolish enough to oppose the powerful Jackson Iron Company based on a decades old ownership claim asserted by the illegitimate daughter of a deceased Indian chief. 

In the hands of Robert Traver, this is the recipe for good storytelling.

“Laughing Whitefish” is filled with themes of idealism, racial and religious prejudice, corporate greed, and the uncertain process of high stakes litigation and individual integrity.  These themes were not of new acquaintance to the life experience of lawyer John Voelker.  Being reared in the Upper Peninsula also contributed to other equally compelling themes in the book.

Voelker’s grandparents were two of many German immigrants to Upper Peninsula mining towns.  His father was born in Ontonagon in 1860 where he learned to speak the Ojibwe language before learning to speak English.  From his earliest days, Voelker saw white prejudice degrade the Indian culture that his family knew and respected.  

Idealism, integrity, perseverance shine in Traver’s rendition of the historical events in “Laughing Whitefish.”  In the romantic conclusion to the novel, they counterbalance but did not erase the preceding legacy of prejudice, corruption, and deceit in America’s treatment of immigrants, indigenous peoples and persons of color.  

Justice Voelker was hopeful that someday they might. 
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(Editor’s Note – Consistent with his wishes, the John Voelker Foundation, established after his death in 1991, sponsors the Native American Law School Scholarship and the Robert Traver Fly Fishing Writing Award.)
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Samuel Damren is a retired Detroit lawyer and author of “What Justice Looks Like.”

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:   By Lisa W. Timmons

Among the procedural tools available to arbitrators and parties, bifurcation remains one of the most useful. The decision to divide an arbitration into distinct phases, most often liability and remedy, or jurisdiction and merits, can shape the cost, pace, and fairness of the proceeding. Used thoughtfully, bifurcation can simplify a complicated case and create meaningful opportunities for settlement. Used reflexively, it can prolong the hearing and increase expense. This article examines bifurcation in arbitration, where the authority to order it originates, and practical considerations which should inform whether a phased hearing will promote efficiency and fairness.

I. Defining Bifurcation in the Arbitral Context

Bifurcation in arbitration is the process of separating issues within one case into distinct phases, whether for purposes of hearing them separately, deciding them separately, or both. The most familiar model separates liability from damages or remedy. Another common model separates threshold issues, such as arbitrability, jurisdiction, timeliness, or standing, from the merits of the underlying claims. In labor and employment matters, bifurcation often appears in discipline and discharge cases when the parties elect to address just cause first and reserve remedy issues unless they become necessary.

Bifurcation can take several forms. In a labor arbitration, an arbitrator might decide whether the employer had just cause for discipline before hearing evidence on remedy. In an employment dispute, the arbitrator may address an affirmative defense or another threshold issue before proceeding to the full evidentiary presentation. In statutory fee-shifting employment cases, the arbitrator may decide liability first and reserve for a later phase the issue of fee entitlement and the reasonableness of the fees and costs sought.

II. The Rationale for Bifurcation

The principal rationale for bifurcation is efficiency. When an early ruling on a threshold issue could dispose of the case, or substantially narrow what remains, a phased hearing may spare the parties and the arbitrator from devoting time and money to evidence that never becomes material. For example, in a discharge case, a finding that the employer had just cause may eliminate the need for a separate remedy phase. By contrast, if the arbitrator finds no just cause, a second phase may still be necessary to address reinstatement, back pay, mitigation, offsets, interest, or other make-whole issues.

Bifurcation may also assist in managing complexity. In matters involving extensive records, multiple categories of damages, expert testimony, or difficult threshold defenses, sequencing the issues can help the arbitrator focus on a discrete set of questions before taking on the next layer of proof. That can improve the clarity of the record and sharpen the parties’ presentation.

Fairness is also an important consideration. A claimant may benefit from obtaining an early ruling on a jurisdictional objection or other threshold defense that would otherwise cloud the entire proceeding. A well-considered bifurcation order can therefore promote both efficiency and procedural fairness.

Finally, bifurcation can encourage settlement. Once the arbitrator resolves liability or a threshold defense, the parties often reassess risk more realistically. That recalibration can narrow the issues and create a better environment for resolving the remaining dispute without the cost of a second full presentation.

III. Authority to Bifurcate

The authority to bifurcate may arise from the parties’ agreement, from the applicable arbitration rules, or from the arbitrator’s procedural authority to manage the hearing. Under the American Arbitration Association Commercial Arbitration Rules, R-33(b), the arbitrator may direct the order of proof and bifurcate proceedings. JAMS rules similarly give the arbitrator broad authority to control the conduct of the hearing, determine the order of proof, and decide jurisdictional and arbitrability issues as a preliminary matter. In most administered cases, therefore, bifurcation fits comfortably within the arbitrator’s procedural authority.

Where the parties have agreed in advance to a phased structure, whether in the arbitration clause, a post-dispute submission agreement, or a procedural stipulation, the arbitrator should ordinarily honor that agreement so long as it is consistent with the governing rules and applicable law. Where bifurcation is contested, however, the arbitrator must exercise independent judgment. That judgment should be guided by whether a separate first phase is likely to dispose of the matter, materially narrow the issues, or otherwise improve the fairness and manageability of the proceeding.

In labor and employment arbitration, the collective bargaining agreement, employer policy, or dispute resolution plan may speak directly to hearing procedure. Even when the governing instrument is silent, past practice or the parties’ expectations may inform whether a bifurcated structure is appropriate. For that reason, an arbitrator considering bifurcation should consult the governing framework carefully before ordering a phased process sua sponte.

IV. Strategic Considerations for the Parties

From the claimant’s perspective, bifurcation can be either advantageous or limiting. When liability is strong and the scope of the harm is important to the overall equity of the case, the claimant may prefer a unified presentation that allows the arbitrator to understand the full practical consequences of the challenged conduct. In other cases, however, a claimant may welcome a first phase focused solely on liability, particularly where an early ruling may promote settlement or avoid disclosure of information that is better reserved for remedy.

For the respondent, bifurcation can provide a meaningful opportunity to limit cost and exposure. A strong threshold defense, or a substantial defense on the merits, may justify asking the arbitrator to hear liability first. At the same time, a respondent may resist bifurcation when remedy evidence would provide context that softens the force of an adverse liability finding or when the issues are so intertwined that separating them would create duplication rather than efficiency.

Both sides should also consider the evidentiary consequences of a phased proceeding. Some evidence will overlap. Counsel should think carefully about what proof belongs in the first phase, what should be reserved, and how testimony given in phase one may affect the arguments advanced later. Bifurcation requires disciplined presentation and a clear understanding of the relationship between the issues being separated.

V. Procedural Management of the Bifurcated Hearing

When bifurcation is ordered, the arbitrator should memorialize the decision in a clear procedural order. That order should define the issues to be heard in each phase, identify the sequence of presentations, establish any page or time limits, and state how the arbitrator intends to communicate the phase one determination. Precision at the outset reduces the risk of later disputes about scope or sequencing.

The first phase should be conducted with the same rigor as any other arbitration hearing. Each party must have a full opportunity to present evidence, examine and cross examine witnesses, and argue its position on the issues assigned to that phase. Bifurcation is a method of sequencing the inquiry. It is not a justification for abbreviating the parties’ right to be heard.

After the first phase, the arbitrator should issue a written ruling that clearly resolves the matters submitted. Depending on the case, that ruling may be labeled an interim decision, an interim award, or a partial award. The ruling should explain the basis for the determination with enough specificity to guide the parties as they prepare for what comes next, while avoiding unnecessary discussion of issues reserved for the second phase.

The question of finality deserves careful treatment. A phase one ruling does not automatically become a final award simply because it resolves liability before remedy. Whether it is treated as final may depend on the parties’ agreement, the governing rules, and the law applicable to confirmation or vacatur. For that reason, the arbitrator should address finality expressly in the procedural order and, where appropriate, in the phase one ruling itself. If the parties intend a partial final award, that intent should be stated clearly. If they do not, the order should make plain that the ruling is interlocutory and that additional proceedings remain.

In labor arbitration, the question of finality is closely tied to the doctrine of functus officio, under which an arbitrator who has issued a final award generally loses authority to revisit the matter. This doctrine has long shaped how labor arbitrators structure remedy phases. The leading treatise, Elkouri and Elkouri, How Arbitration Works, reflects the established practice of expressly retaining jurisdiction over remedy when a grievance is sustained, rather than treating the liability determination as a complete and final award. By reserving jurisdiction in the award itself, the arbitrator preserves authority to resolve disputes over back pay, mitigation, offsets, and the precise terms of a make-whole order if the parties cannot agree. A clause retaining jurisdiction for a defined period is therefore a common and prudent feature of a sustained discipline or discharge award, and it allows the parties a first opportunity to implement the remedy themselves before returning to the arbitrator.

VI. Limitations and Cautions

Bifurcation is not universally beneficial. One risk is that issues separated on paper may prove difficult to separate in practice. Liability and remedy evidence may overlap, and the effort to keep them apart can lead to duplication, piecemeal testimony, or an incomplete picture of the dispute. In such cases, a unified hearing may better serve efficiency and coherence.
Delay is another concern. If the second phase cannot be scheduled promptly, bifurcation may lengthen the overall life of the arbitration rather than shorten it. The possibility of settlement after phase one may justify that risk in some matters, but it should not be assumed. Arbitrators and counsel should assess scheduling realities, witness availability, and the likely time lapse between phases before adopting a bifurcated structure.

There is also the risk that the anticipated efficiency gains will not materialize. A first phase may narrow the case only modestly, leaving most of the same evidence and argument for later. In that setting, the administrative burden of two hearings, two rounds of briefing, and two procedural calendars may outweigh the benefit of sequencing.

Finally, the arbitrator should remain attentive to perceptions of fairness. Because bifurcation often benefits one side’s strategic position more than the other’s, a decision to bifurcate should be transparent, reasoned, and tied to the specific circumstances of the case. A carefully explained procedural order is one of the best safeguards against the appearance that sequencing decisions were made arbitrarily or with favoritism.

VII. Conclusion

Bifurcation is often a valuable procedural tool. When used in the right case, it can reduce costs, sharpen the presentation of threshold issues, and promote settlement. When used in the wrong case, it can create delay, duplication, and unnecessary complexity. Its value therefore derives not from its availability, but from its careful application.

For arbitrators, the decision to bifurcate calls for practical judgment, attention to the governing rules, and a clear articulation of the reasons for the chosen structure. For parties and counsel, it requires a realistic assessment of whether a phased hearing will actually simplify the dispute or merely rearrange it. Approached with deliberation and transparency, bifurcation can serve both the parties and the arbitral process well.
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Lisa W. Timmons is the Executive Director and a senior member of Professional Resolution Experts of Michigan (PREMI).    She is a full-time neutral with experience in labor, employment, and commercial disputes. She serves as an arbitrator, mediator, hearing officer, and fact-finder across the public and private sectors. Since 1998, she has led the Mediation Tribunal Association, providing alternative dispute resolution services to Michigan’s state and federal courts. Timmons sits on arbitration and mediation panels for the American Arbitration Association, the Federal Mediation and Conciliation Service, FINRA, the Labor Relations Connection, New Era ADR, and multiple state and regional labor boards.  Timmons is the immediate past chair of the ADR Section of the State Bar of Michigan. She co-chairs the Mediation Committee of the ABA Section of Dispute Resolution and serves as neutral co-chair of the State and Local Government Bargaining Employees Committee of the ABA Section of Labor and Employment Law. She earned her law degree from the University of Detroit Mercy School of Law and a Master of Arts in Dispute Resolution from Wayne State University. A former adjunct professor, she writes and speaks regularly on alternative dispute resolution topics.