The Employment Arbitrator and the Pro Se Party
Canter, Jonathan D., Dispute Resolution Journal
In this article, Jonathan Canter makes a case against parties going solo-pro so-in pursuing arbitration of an employment dispute. He argues that employment laws are too complicated and that an aggrieved employee is taking too big a risk when he or she decides to stand before an arbitrator without the benefit of the expertise of an attorney or an advocate. For the arbitrator, the pro se party could pose a major challenge in balancing impartiality and fairness. Canter identifies three key problems facing the arbitrator in such a situation, outlines how the arbitrator should handle these problems, and suggests how ADR providers can help parties who want to represent themselves.
The foreheads of many seasoned employment arbitrators have been known to bubble with sweat at the prospect of arbitrating the claims of a pro se party. The common expectation, often confirmed by experience, is that pro se parties bring high levels of emotional involvement and low levels of adversarial skill to the proceeding, leading to vexing ethical and jurisprudential concerns which challenge the impartiality of the arbitrator and the fairness of the arbitration.
If, for example, the arbitrator intervenes during a pro se party's interrogation of a witness, to elicit testimony which is material to the pro se party's case and which otherwise would not be elicited, is the arbitrator being partial to the pro se party or acting to ensure fairness in the process?
Similarly, what if the pro se party claims to have been discharged in breach of job security provisions of the employment handbook, but the arbitrator recognizes the facts might better support a claim of age discrimination under the Age Discrimination in Employment Act (ADEA)? Should the arbitrator call upon the parties to litigate the ADEA claim, or instead allow it to be waived?
Or let's assume that the employer's counsel submits a meticulous, tightly reasoned post-hearing brief supported by extensive citations, while the pro se employee submits a rambling narrative without reference to prevailing law. Should the arbitrator, in the interests of fairness, conduct independent legal research to find law which supports the employee's point of view?
The arbitrator must be impartial. The arbitrator must also ensure the fairness of the process. These bedrock arbitral principles are put in real or potential conflict each time the pro se party fails to ask the right question, fails to recognize an important claim, requests strategic advice from the arbitrator, diverts the process with emotional overflow, or otherwise lacks the expertise to conduct discovery, comply with procedural rules, perform legal research, produce appropriate evidence, and argue legal issues. When opposed by sophisticated counsel, the pro se party is at a substantial disadvantage, and may not even know it. How far should an employment arbitrator go to balance the scales?
This article will review provisions in the AAA's National Rules for the Resolution of Employment Disputes (the Employment Rules) and also the AAA's practices with respect to pro se representation. It will then pose and attempt to answer, as an arbitrator might, three typical pro se problems.
The Employment Rules
Rule 16 of the AAA's Employment Rules, titled "Representation," begins:
Any party may be represented by counsel or by any other person whom the party designates. For parties without representation the AAA will, upon request, provide reference to institutions which might offer assistance.
The message is that a party has the right to be or not to be represented, and that the AAA is neutral on the choice. There is no discussion of the pros and cons of pro se representation. There is no warning about the complexities (and traps) of employment law. There is no encouragement to seek representation, or to seek assistance in deciding whether to seek representation.
The laissez-faire posture expressed by Rule 16 seems premised on the principle of impartiality, the concern that AAA involvement in a party's representation decision would or could be perceived as biased. …