2006/Vol. 5 No.1 - Hamline Law - Hamline University

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56 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1 is not working. An arbitrator may deal with the situation by simply refraining from taking notes when the hyper-aggressive advocate continues the behavior. If the hyper-aggressive advocate is acting in such a fashion to impress his or her client, so be it. It is important to remember that such aggression will not help the aggressive party’s case and, more often than not, be detrimental. O. Closing Arguments versus Post-Hearing Briefs As stated by Francis Bacon, “[r]eading maketh a full man; conference a ready man; and writing an exact man.” 218 In traditional arbitration hearings in the United States, the parties choose either oral closing arguments or post-hearing briefs. In deciding between a closing argument and a post-hearing brief, the parties should consider the nature of the dispute and the benefits of using one form over the other. A closing argument allows the advocates to summarize the evidence, apply the evidence to the theory of the case, and argue the result the advocate thinks the arbitrator should reach. The parties may prefer an oral closing argument because of the time and cost involved in preparing a post-hearing brief; plus the postponement of the decision as a result of the extra time required to prepare a brief. 219 A post-hearing brief may be helpful in dealing with complicated cases which have lasted for more than several days. 220 Post-hearing briefs are useful because they allow the advocates to summarize the evidence in writing and argue their respective positions. Post-hearing briefs allow the advocates to research and cite relevant arbitration precedent and court cases, if applicable. 218. Mackay, supra note 214, at 954. 219. See Federal Mediation and Conciliation Service, Arbitration Statistics Fiscal Year 2004, Oct. 5, 2004, available at http://www.fmcs.gov/assets/files/Avera geDays.doc (last visited Dec. 8, 2005). The average time for submitting a posthearing brief has increased from 31.0 days in fiscal 1990 to 65.31 days in fiscal 2004. Id. Despite the increased time and cost associated with submitting a brief, the Federal Mediation and Conciliation Service “Arbitration Statistics Fiscal 2004” reports that briefs were filed in 2,094 of 2,581 cases, or in 81.1% of the cases. See Federal Mediation and Conciliation Service, Arbitration Statistics Fiscal Year 2004, Oct. 5, 2004, available at http://www.fmcs.gov/assets/files/IssesBriefsTranscriptsW aivers.doc (last visited Dec. 8, 2005). 220. NOLAN, supra note 3, at 32.
2006] ARBITRATION: THE BASICS 57 VIII. THE DECISION A. Use of the Contract, the Law, and Public Policy Arbitrators have great latitude when rendering a decision and can decide cases based on their own subjective notions of justice and equity, disregarding substantive law. 221 It is argued that arbitrators should base their decision on the four corners of the contract. 222 In some circumstances, however, arbitrators might want to take into account substantive law and public policy in making determinations. 223 Arbitrators who favor the contract as the basis of the decision view the 221. See, e.g., Hill v. Cloud, 648 So. 2d 1383, 1389 (2d Cir. 1995) (quoting Commercial Arbitration Rules of the American Arbitration Association) (stating that “[t]he arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties”). 222. See Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141, 147 (4th Cir. 1993) (quoting Upshur Coals Corp. v. United Mine Workers, Dist. 31, 933 F.2d 225, 226-28 (4th Cir.1991)) (stating that, “[a]lthough we may disagree with an arbitrator’s interpretation of a contract, we must uphold it as long as it ‘draws its essence from the agreement’”); In re Copaz Packing Corp., 105 LA 1074 (Feldman 1995): “[T]he language of the four corners of the agreement are generally the only language that can be dealt with when an arbitrator determines the result in a labor arbitration matter. There are a few exceptions to that general rule but those exceptions do not apply in this particular case. The language of the contract of collective bargaining revealed the wages to be paid to a group of individuals who have already reached the applicable base labor rate and a wage will be paid to job entry personnel. Wages are a creature of the contract. In other words, evidence outside the four corners of the agreement, unless it is specifically referred in the contract do not control the meanings and statements within the four corners of the agreement.” Id. 223. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)) (stating that, “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum”); In re Cargill, Inc., 117 LA 214 (Feldman 2002): Under the modem evolution of that, has come findings that show that outside law may be engrafted upon a contract of collective bargaining whether that collective bargaining contract contains such language or not of placing that outside law within the terms and meanings of the four corners of the contract. Id. (holding the Federal Mine Safety and Health Act of 1977 would be engrafted onto contract).
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