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Is Employment Arbitration a High Risk Profession?

Published in Association of Conflict Resolution (ACR) Magazine, Spring 2002
Guidelines for Personal Safety

Background
There is significant anecdotal, but little empirical data concerning the potential physical danger of serving as an Employment Arbitrator. However, a parallel from Labor Arbitration suggests that there are occasional but serious risks. Hearings have had fistfights, and Arbitrators have received threats and been stalked by unhappy parties. A Vice President of a national ADR provider observes that they receive an average of three threats against arbitrators per year. Enclosed are common sense guidelines for your personal security.

Pre-Hearing Steps
You should protect your home address. Don't disclose where you live. If your office is in your home, use a mail stop. Use a separate phone number for the business. Try to secure a business phone with a different area code than your home phone. When working from an office, use a receptionist. The first step in personal security is to restrict access to the target.

Hearing Procedures
You should always conduct the hearing away from your office. It may be reasonable to conduct the hearing at the employer's site, because that setting can often provide a more secure setting.
Always be aware of exit routes from the conference room. Take a look around whenever entering the room. Sit near the door. A room with two exits is preferable. Discretely request the remove of any possible weapons from the room, particularly scissors.

Be sensitive to any unusual hostility in the hearing. You need to constantly evaluate the parties for rising anger. Start the hearing with a few clear comments about mutual respect and calmness. If you hear an implicit or direct threat, take action. If you observe anger in the hearing that could explode, call a break, talk to counsel, or continue to another day.

You should not share personal information to the parties. Don't disclose personal family or residential information in casual conversation. Don't ride in the same elevator with the parties. Take breaks and restroom visits alone. Don't share details of your flight arrangement after the hearing.

Award-Writing
You should never embarrass a party in the discussion section. Always demonstrate respect for both parties, even if their presentation or their merits were weak. For example, instead of characterizing a witness as liar or not believable, simply refer to the "inconsistent testimony"

Post-Award Procedures
You should tape any threatening messages and refer them to the police. Notify both counsel immediately and discuss their assistance. Retain any threatening letters and refer to the Case Administrator. Most administrative agencies will assist the Arbitrator in responding to threats and taking precautions. Ensure that the Case Administrator immediately discloses any threatening letters. Most often, the threats are mailed to the agency because the party does not have the arbitrator's address.

Summary
Employment disputes are, by nature, emotional. These disputes often involve family, prestige, self-identity, anger, betrayal and longstanding relationships. In the labor setting, arbitration has a history of occasional violence. Today, personal security has become a legitimate concern for employment arbitrators, particularly during termination cases. Safety precautions should become integrated into the arbitrator's operating style. The basic rule is that when you are concerned, take action with sensitivity.

Richard D. Fincher is a full-time mediator/arbitrator of commercial, employment, and class action litigation. Dick is also the Managing Partner of Workplace Conflict Resolutions (WCR), a Phoenix-based ADR consulting firm. He is a National Co-Chair of the ACR Workplace Section. Dick can be reached at 602-953-5322 or rdf@workplaceresolutions.com

 

 

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