Reprinted from Contra Costa County Bar Association Magazine https://www.cccba.org/?pg=ContraCostaLawyerMagazine&pubAction=viewIssue&pubIssueID=58085&pubIssueItemID=374129
With the prevalence of mandatory arbitration clauses in employment agreements, employment disputes are often resolved not in the courtroom, but in private arbitration. Understanding how to navigate the arbitration process in an employment case is more essential than ever.
Whether you’re representing an employer or an employee, arbitration presents unique challenges and opportunities. The more informal procedures and relaxed rules of evidence require a different approach than traditional litigation, but they do not lessen the need for precision, clarity, and strategic preparation. In arbitration, every decision—legal and factual—is usually made by a single neutral. That makes it even more important to present your case in a way that is both persuasive and easy to follow.
This article offers practical strategies for effective advocacy before, during, and after the hearing. From managing time estimates and exhibit organization to framing your opening and streamlining evidentiary issues, thoughtful execution can elevate your case and increase the likelihood of a favorable outcome.
1. Better Scheduling, Better Outcomes: Estimating Hearing Length Wisely
One of the most common problems in arbitration is underestimating how much time the hearing will take. When reserved hearing dates prove insufficient, the result can be a fragmented presentation, delayed decision, increased costs, and a frustrated arbitrator.
To minimize this risk, counsel should carefully assess the number of witnesses they plan to present and the likely duration of both direct and cross-examination. Early coordination with opposing counsel to develop a realistic time estimate is critical.
A practical checkpoint is to request an arbitration readiness conference roughly one month before the hearing. By that time, both sides should have a clearer understanding of the final witness list and anticipated evidence. If it becomes apparent that the scheduled time is inadequate—and the arbitrator is unavailable for additional days—counsel should consider continuing the hearing to a block of dates that allows the case to be completed in one continuous session.
If a continuation isn’t feasible and the hearing must be split into two phases, parties should consider jointly retaining a court reporter. Having a transcript ensures that the arbitrator can recall and consider all the evidence cohesively, regardless of time gaps. It also allows counsel to anchor their closing briefs to the transcript, tying the full narrative together with greater precision.
2. Handle Evidentiary Issues Before the Hearing Starts
To ensure a smooth and efficient arbitration, “consider scheduling a half or full day for motions in limine and objections to evidence a week before the hearing” recommends Hon. Judy Hersher, a Northern California-based neutral with Judicate West. Doing so helps counsel fine tune their presentation, allows witnesses to be scheduled more precisely, and avoids unnecessary delays caused by ruling on evidence mid-hearing.
This pre-hearing evidentiary session can also create space for meaningful discussion about case narrowing or settlement. With the scope of admissible evidence clarified, parties may reassess the strength of their positions and revisit the potential for resolution.
3. Use Your Opening Statement Strategically
While some attorneys are tempted to waive opening statements in the interest of saving time, this is frequently a missed opportunity. An arbitrator is not just the judge; they are also the fact-finder and will benefit from a clear, compelling roadmap of what to expect.
While your pre-hearing briefs may set out the legal framework, the opening statement should translate that into a vivid, factual story that prepares the arbitrator to absorb and contextualize the evidence as it comes in. Because employment cases often involve deeply human stories and compelling narratives, a well-crafted opening statement is your first—and perhaps most critical—opportunity to shape the arbitrator’s perception, engage their attention, and clearly explain the core of your legal and factual argument.
4. Clarity Counts: Visual Tools and Chronologies that Persuade
In arbitration, staying organized and clear is key. The more streamlined and accessible your case presentation is, the more persuasive it becomes. While the rules of evidence are relaxed, arbitrators still expect—and appreciate—a focused, coherent presentation, not a disorganized data dump.
“Don’t skimp on effective presentation materials—photos, charts, diagrams, video presentations, etc.—just because there is an arbitrator and no jury,” cautions Judge Hersher. “These materials help cement the facts and create a visual picture for the decision-maker.”
A detailed chronology can also make the facts significantly easier for the arbitrator to follow, particularly where many employment claims, such as harassment, retaliatory discharge, and disability-related issues, like failure to engage in the interactive process, require proving a series of facts over an extended period. A chronology will help the arbitrator retain key facts and see how they fit together. As Jeffrey Owensby, a Sacramento-based neutral with Judicate West who is a member of its Employment Practice Group, notes, “Providing the arbitrator with a closing brief that includes a chronology listing dates, key events, and the corresponding exhibit or witness testimony supporting each point can go a long way in helping determine whether the elements of a claim or defense have been established.”
In short, the easier you make it for the arbitrator to follow your case, the more effectively you can highlight the strengths of your argument.
5. Keep Things Organized and Easy for the Arbitrator to Access
Exhibit management is another area where thoughtful organization can pay dividends. A unified, pre-agreed exhibit numbering system—ideally established early in the case and carried through from deposition to hearing—prevents confusion and saves time. Parties should consider preparing a joint exhibit binder from the outset. During the hearing, agreed-upon exhibits can be admitted jointly, while contested items can be addressed in an organized, limited set. After rulings on motions in limine, any previously disputed exhibits that are now admissible should be incorporated into the updated joint exhibit book. This consistency ensures that everyone is referring to and understanding the same material the same way.
Keeping exhibits consistent and easy to navigate lets the arbitrator stay focused on what really matters—the substance of the case.
6. Incorporate Jury Instructions to Sharpen Your Argument
An effective way to focus your case presentation is to append applicable jury instructions—federal or state—to your opening and closing briefs. Doing so keeps both you and the arbitrator grounded in the essential elements of each claim and defense, as well as the applicable burden of proof.
This approach not only sharpens your advocacy but may also streamline the hearing itself by clarifying what needs to be proved. This is particularly useful in employment cases where overlapping statutory and common-law claims can lead to confusion about what must be proven unless the legal standards are clearly laid out and where credibility disputes and emotional testimony can easily distract from the actual elements of each claim.
In cases where published jury instructions are unavailable for a specific issue, clearly set out the elements of a prima facie case in your briefs. Your closing brief should then tie those elements directly to the facts developed in testimony and admitted evidence, making it easy for the arbitrator to determine whether the required burden has been met.
Preparation Drives Persuasion
Winning in arbitration demands careful planning, clear organization, and strategic presentation. By managing time, exhibits, and evidence effectively, and using visual tools to enhance your argument, you can ensure that the arbitrator remains focused on the key points of your case. When you make it easy for the arbitrator to follow your narrative, you increase your chances of a favorable outcome.