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Labor & Employment Law

: Thoughts from a Management Lawyer

Where Have all the One Day Cases Gone? Part II

By Michael Fitzgibbon

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My earlier post on this topic has generated some discussion (which is great) and I have received a number of email, including from some arbitrators who have also given this subject considerable thought.

Norm Jesin, an experienced arbitrator and vice-chair at the Ontario Labour Relations emailed me and gave me permission to post his comments here. Here is the email in it's entirety:

Michael

I have just been referred to your blog of June 21 regarding the reasons for the disappearance of the one day hearing.

You have touched on a matter that has been of great interest to me when I was in practice and now as an arbitrator.

I agree that mediation is important but should not be persisted with when it is clearly futile.

More importantly, I do think that too many hearings take too long, - especially given the relative importance of the issues involved. I recently talked about this at the 6 minute lawyer conference chaired by your colleague ? Matt Certosimo. I am now encouraging parties to avoid evidence wherever possible by simply relying on a pleading like version of the facts. When parties agree, we reserve their opportunities to present particular evidence that may be crucial and contested. However, I have found that many cases can still be conducted at a much quicker pace and many may even be completed in a day or less ? if the parties wish to be cooperative (that is Key) in a speedy, but still substantive process. I also believe that there are more and more arbitrators conducting themselves with the intent of having a less costly process.

You may feel free to post these comments on your blog if you wish.

Thanks

Norm Jesin

Thanks for your email Norm, it's much appreciated. It's great to get the perspective from the decision maker.

Norm's comment about arbitrators trying to adopt ways of more expeditiously dealing with the issues is well taken. It must be frustrating in some ways for arbitrators (and it's not something I've thought too much about from that perspective) because, in the end, they can make a suggestion about the process but, really, they are at the mercy of the parties who will have to "agree" to whatever the process is for running the case. We are, as lawyers, trained to conduct hearings in a particular way (opening statements, present your evidence, examine, cross-examine, closing). It's a bit of a security blanket in some ways that we're loathe to give up. Maybe we (really, "I") need to be more attuned to the arbitrator's suggestion regarding process or at least more thoughtful and patient when it comes to a suggestion as to process that is a little (or a lot) different from the one that we're used to?

In many situations, not all of course, there's a better and more efficient way of running the hearing that might be more in line with the "historical" process than the process that it has morphed into. In the end, if the case can be done more efficiently, everyone wins and that's probably the only time in an adjudicative process that you can say that.

Full post as published by Thoughts from a Management Lawyer on June 25, 2008 (boomark / email).