The Case of the Curious Arbitrator

Arbitration is an informal process, which means that arbitrators can, and do ask questions of witnesses sometimes.  But should they?  Today I had a case in which it annoyed me that the arbitrator was asking questions, and almost all of them helped the employer's case.

There are two schools of thought on this.  One is that arbitrators are there as judges, simply to hear the cases that the lawyers present.  The other is that arbitration is a type of truth finding process, so the arbitrator can, and should ask questions to discern the truth.

I believe for the most part that arbitrators should hear the cases presented to them and make decisions based on the cases the lawyers make.  Of course, is something is confusing, or needs to be clarified, I welcome questions by the arbitrator.  What I don't like is when an arbitrator helps the other side make their case, particularly in a discharge case.

Today, for example, I had a discharge case involving an employee who was accused of theft.  He had an explanation for what he did, and the explanation was not unreasonable.  The employer's lawyer finished cross examination, then rested.  Then the arbitrator jumped in.

The arbitrator was asking questions and stumped the grievant on a few of them.  The witness, perhaps feeling slightly intimidated by the arbitrator, struggled with his answers.  It didn't kill my case, but it sure didn't help.  The point though, was that no one asked the arbitrator for her help with the witness.

I don't know how the case is going to come out.  I do know, though, that an arbitrator that asks too many questions won't make it to the top of my list in the future.