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The Role of Evidence in Arbitrating Employment Disputes: Best Practices and Key Considerations

February 28, 2024 12:54 am

The Role of Evidence in Arbitrating Employment Disputes: Best Practices and Key Considerations

An increasing number of employment disputes are being decided in arbitration. Arbitration offers a less formal setting than court litigation.  But the importance of obtaining and presenting the right types of evidence should not be diminished on account of the informality of the arbitration proceeding.

Evidence guides arbitrators in decision-making. And parties must understand the arbitrators have wide latitude in evaluating evidence and its relevance. Whereas the rules of evidence are strictly applied in courts, arbitrators have broader discretion in determining what evidence is admissible. You will find authority for an arbitrator’s discretion in the rules of many dispute resolution bodies, like those of the American Arbitration Association.

Consequently, the preparation and presentation of evidence in an arbitration proceeding requires a strategic approach.  focusing on how your story can best be told and what types of evidence will have the greatest impact on the arbitrator. Will your client be able to express him or herself in a cogent manner?  If not, is it better to present what happened through the testimony of an independent witness?   What documents are necessary to support your client’s claims?  Do you need an expert witness for causation or damages?  And importantly, how do I obtain certain kinds of evidence and present it at hearing?     Presenting evidence in an employment arbitration also may require you to consider the confidentiality of sensitive information, or whether an arbitrator may exclude evidence out of a sense of fairness due to late disclosure or intentional withholding.  

Key Takeaways

  • Evidence in employment arbitration demands a strategic approach to influence the arbitrator’s decision effectively.
  • Arbitrators have considerable leeway in determining the admissibility and relevance of evidence.
  • Confidentiality and sensitivity are vital considerations in handling evidence during employment dispute arbitration.

Understanding Evidence in Employment Arbitrations

Evidence in employment arbitration encompasses all forms of information that arbitrators rely on to make their rulings. This includes testimony of witnessesdocuments such as emails and contracts, and physical evidence, which might range from printed material to digital records. The objective of presenting evidence is to establish facts that support the claims or defenses of the parties involved.

Rules of Evidence: Applicability in Arbitration

Although Rules of Evidence often guide court procedures, their strict application is typically more relaxed in arbitration. Because this creates a certain degree of ambiguity, some arbitrators do not stray far from Rules of Evidence.  On the other hand, a document that might not be admitted in court due to a technicality might be accepted into evidence by an arbitrator over objection of the other party if it is highly relevant. And, arbitrators also sometimes admit less relevant evidence “for what it is worth” meaning they will weigh the worth of the evidence at the time they have a complete record and can determine how pertinent it is to resolving the dispute

The Distinction Between Arbitration and Litigation Regarding Evidence

The arbitration process has a distinctive stance regarding evidence compared to traditional courtroom litigation. In arbitration, the evidentiary procedures are usually simpler and less formal, which streamlines the process. This streamlined process often leads to a faster resolution of disputes,

Challenges with Hearsay Evidence and Exceptions

Challenges with Hearsay Evidence and Exceptions

Hearsay Evidence presents a challenge in arbitrations due to its secondhand nature and typical exclusion in courts. Yet, arbitrations allow some flexibility for hearsay, provided it carries sufficient indicia of reliability. Exceptions are often made when direct evidence is unavailable, and the reported statements have substantial guarantees of trustworthiness, aligning with the practice of evidence admissibility in arbitration (Evidence Admissibility in Arbitration: What’s In, What’s Out).  In some cases, an arbitrator may even require a party to present a witness’s direct testimony through a signed statement made under oath.   The witness is then presented at the hearing only for the purpose of conducting cross-examination. This methodology overcomes any objection to hearsay. 

Preparing Evidence in Advance

Proper preparation of evidence is pivotal. Parties in arbitration should gather and organize all relevant documentation and information before the hearings commence. This could range from contracts and communication records to witness statements. They must comply with the arbitrator’s deadline for evidence exchange to ensure their submissions are accepted.

  • Compile a comprehensive list of evidence well before the deadline.
  • Systematically organize evidence for easy reference during the arbitration.

Ensuring the Reliability and Credibility of Evidence

The arbitrator’s decision hinges on the reliability and credibility of the evidence presented. Evidence should be authentic, directly relevant to the case, and obtained legally. Parties should take steps to authenticate documents and prepare witnesses to affirm their credibility.

  • Cross-check facts and data in the evidence for consistency and accuracy.
  • Screen witnesses to confirm their statements align with the submitted evidence.

Strategies for Effective Presentation of Evidence

Effective evidence presentation can significantly affect the outcome of arbitration. Use clear and direct language to describe evidence and employ visual aids where necessary to reinforce the narrative. Demonstratives can clarify complex points and make a lasting impression. The argument should be logical, with evidence presented in a coherent sequence to build a compelling case.

  • Present evidence logically, starting with the most compelling pieces.
  • Utilize charts, timelines, or graphs to illuminate and reinforce key points.

Confidentiality and Privacy Concerns

Confidentiality is a cornerstone of employment dispute arbitration. Parties often prefer arbitration over court litigation due to its private nature, which allows them to resolve disputes without public scrutiny. Confidential evidence management is essential to uphold this privacy. Arbitrators and parties must establish clear protocols to ensure that sensitive information remains secure throughout the arbitration process.

Dealing with Sensitive Information

Handling sensitive information in employment disputes must be conducted with the utmost care. This information might include personal employee records, medical information,  internal company communications, or proprietary data. Arbitrators are responsible for creating an environment in which such information is only disclosed to the extent that it is relevant and necessary for the resolution of the dispute. 

The Role of Expert Witnesses in Complex Employment Disputes

In complex employment disputes, expert witnesses can provide specialized knowledge that aids the arbitrator’s understanding of the issues at hand. These experts might include economists, industry specialists, or human resource professionals. Their testimony should be carefully vetted to ensure relevance and reliability,

The Role of Cross-Examination in Testing Evidence

Cross-examination serves as a critical tool for testing the veracity and strength of evidence presented in arbitration. The process enables the disputing parties to challenge and clarify the evidence brought by the opposing side. The arbitrator, much like a judge, oversees cross-examination and ensures its e focus is related to substantive, or pertinent issues.  Do not assume the informality of arbitration allows you to venture into areas of cross-examination that are designed to embarrass or harass a witness.  

The Significance of the Burden of Proof in Arbitration

The burden of proof lies with the party asserting claims or defenses in arbitration, akin to the legal standards in a court of law. This burden determines which party must prove their case to the arbitrator and can influence the entire arbitration process. For instance, in statutory employment disputes, an employee carries the burden to prove he or she was a victim of discrimination or retaliation.   On the other hand, if the employer then brings a counter-claim in that same arbitration against the claimant for violation of a non-compete agreement, the employer carries the burden of proof to establish the counter-claim. 

Avoiding Pitfalls in the Arbitration Process

Arbitration typically values efficiency, and therefore evidence should be presented in a streamlined, common-sense manner. Another best practice is to know the arbitrator’s preferences in advance when it comes to the submission of evidence and to adhere to these preferences as closely as possible.

Remedies for Evidentiary Misconduct

Should evidentiary misconduct occur, such as the intentional omission or tampering of evidence, the arbitration process generally provides remedies. This could involve asking the arbitrator to draw an adverse inference or moving the arbitrator for sanctions against the offending party, including the exclusion of a witness or an award of monetary sanctions. In severe cases, post-arbitration judicial intervention may be sought to address any wrongdoings, bearing in mind that arbitration decisions are typically binding and less subject to appeal than court decisions. Effective pre-hearing conferencing can help mitigate risks by establishing clear evidentiary ground rules agreed upon by both parties.

In this final section, the article consolidates the core insights regarding evidence in employment dispute arbitration, analyzes the significant influence evidence has on arbitration outcomes, and reflects on the dynamic interplay between arbitration proceedings and the presentation of evidence.

Weighing Evidence and Making Determinations

Weighing Evidence and Making Determinations

Arbitrators review each piece of evidence to determine its relevancy and reliability.  They apply the same considerations to documentary evidence witness testimony.

Final Thoughts on the Evolving Nature of Arbitration and Evidence

All of this means that you should be prepared to meet court standards of admissibility of certain types of evidence in arbitration but expect there will be some leeway.   In the end, arbitrators must balance the probative value of evidence against its potential to prejudice or mislead, ensuring a fair and equitable decision.  The principle that arbitrators have broader discretion than courts to determine what evidence is relevant and material aligns with the principal aim of arbitration:  to be a more efficient and less formal process than litigation.