Where Have all the One Day Cases Gone?

The other day I was asked by a client (I will paraphrase the question) "where have all the one day cases gone?"  In other words, why can't (most) arbitration cases be completed in one day?  It's a great question.

When I was just starting my undergraduate degree in Industrial Relations I took the standard intro course.  My first paper in university was about the advantages of labour arbitration process.  In my research I came across all kinds of information and recall listing the following:

1. Speed and efficiency
2. Cost
3. Informality
4. Expertise

This was back in 1986 (it's hard to believe). 

I recall writing that arbitration is "great" as compared to the courts because you get into a hearing quickly, you get a decision quickly, the rules of evidence are somewhat relaxed, thus giving the process an air of informality that is designed to get at the heart of the issue, you are before an expert who is intimately familiar with the nuances of labour relations. Because of all of this, the workplace parties are able to address their disputes in a timely and cost effective way and then move on.

What's changed?  Here's my thoughts on "where have all the one day cases gone?" (and why it takes longer to conclude a hearing). You can still do a one day case, but it's less common that in the past for a number of reasons: 

1. The issues that go to arbitration have become much more complex;
2. The stakes of many cases that get to arbitration for the workplace parties are significantly greater than in the past;
3. The jurisdiction of the arbitrator to hear matters has greatly expanded to include non-traditional labour claims such as, depending on the case and the collective agreement, defamation and other tort type claims;
4. The arbitration process has become increasingly legalistic, formal and court-like.  As an example, the rules of evidence have, historically, been relaxed at arbitration.  That is still the case, in some respects, but evidentiary issues are increasingly being raised and argued.  This, I think, is inevitable given the issues that come before arbitrators, the complexity and significance of those.  The admission of video evidence is a hotly litigated issue these days with arbitrators in Ontario at least falling into two camps (relevance (we'll admit it if it's relevant to the issue) vs. reasonableness (we need to balance the interests of the employer and employee).  There are other examples, but the point is that the rules of evidence are becoming more formalized and court-like.  Again, historically courts have dealt with various tort claims.  Since the Supreme Court of Canada case in Weber, those have, with more regularity, been found to come within the purview of the arbitrator.  So, it's not surprising that more court-like-formality would be injected into the process (and that's not necessarily a bad thing given that the outcome of the arbitration would be as significant as if the issue had been decided by a judge, as was the case in the past)
5. The start of the hearing is often delayed.  Off the top, there are at least a couple of reasons for this.  First, there is a propensity to mediate every case.  I am a huge fan of mediation and believe that most cases can be successfully resolved through mediation if the parties are prepared to compromise and exercise some degree of creativity.  But there are some cases that simply need to be litigated and a decision written by a third party.  There are many and varied reasons for this, including political reasons.  In those cases, where mediation is undertaken, it turns out to be a futile, often frustrating, waste of time and money for everyone that, in the end, does nothing more than delay the hearing.  To the extent that blame lies anywhere here, it lies, in my view, on the representatives of the employer and the union.  It is for them to shut down the process at the earliest opportunity where one or the other is of the view that mediation is simply wasting time.  Many counsel and clients are afraid of offending the arbitrator where he or she has proposed mediation by saying, in effect, "thanks but no thanks".  They don't want to be seen as the impediment to a process that the arbitrator him or herself has proposed.  I, for one, am more concerned about offending my client by having them unwillingly participate in a process that, in the end, they have no desire to be involved in and which simply delays the start of the hearing and increases their costs.  Arbitrators who propose mediation are trying to be helpful to the parties and do not know the internal dynamics behind the case.  They are not there to be obstructionist nor are they there to offend or upset anyone.  They are trying to help.  I believe that they appreciate counsel politely but candidly shutting down the process at an early stage rather than allow it to continue simply because the client or the lawyer doesn't want to be seen as "the bad guy".  The second reason why hearings are delayed is because, on day 1, the parties spend time dealing with a whole range of preliminary or pre-hearing matters such as the sufficiency of production of documents and particulars.  The outcome is more often than not an adjournment with further delays in the start of the case.  These are matters that are more appropriately dealt with prior to the start of the hearing between the lawyers or parties.  If the grievance procedure is truly about exchanging information about your position with a view to exposing strengths and weaknesses in an open and candid way with a view to determining if the case can be resolved short of arbitration, then there's really no reason for learning the other side's case on day 1.  Historically, arbitration has been about ambush (many took pride in the fact that this distinguished arbitration from court).  That is less so today and, in the end, keeping things close to the vest simply results in further delay and cost.
6. Agreeing on the evidence (facts) is happening with less frequency.  If the parties can put together an "Agreed Statement of Fact" the case will run more efficiently.  Too often, though, time is not spent in advance of the hearing on this with the result that, on Day 1, the parties try to hammer out some agreement in the morning or simply forge ahead and call the evidence on all issues, even those that are not in dispute.
7. Scheduling is more difficult than ever before.  Recognizing that one day cases are few and far between, scheduling a date is tough, scheduling continuation dates is tougher and getting consecutive dates is tougher still.  The most frustrating part of my work is scheduling.  It takes forever, you get a date in November, then another in May, then one in June and so on until the case is done.  This is inevitable, lawyers, clients, witnesses and arbitrators are busy and it is difficult to reconcile schedules.  I'm not certain that there's a solution to this.
   
8. The time between the last day of hearing and the release of the decision.  Because cases take longer to complete, the evidence is more involved and the issues more complicated the day of the "bottom line" decision issued on the last day of hearing with "reasons to follow" is simply unheard of anymore.  Instead, the workplace parties wait for weeks and, more commonly, months for the release of the decision with all of the uncertainty that waiting entails.  For example, in a discharge case, the proverbial "clock is ticking" on damages while on an interpretation of the collective agreement case, the parties might be dealing with an on-going dispute (say about scheduling) that has a continuing element to it that hangs over the parties.  This is not a criticism in any way, simply an acknowledgment that writing a decision takes time, especially given the complexity of issues that come to arbitration.  

Well, these are my thoughts on why the day of the one day case is, largely, behind us and why arbitration takes more time to complete than in the past. 

As always, I am very interested in your thoughts.  Comments are open and if you are concerned about anonymity and don't want to leave a comment, please email me (I will not disclose anything you send me).  I'm also interested in whether this is a problem in other jurisdictions and, if so, what if anything, has been done to try to deal with the issue.