This small book has much to say. For a how-to book aimed at new advocates, this is important. Gerald Cohen begins with a useful chapter on ethics. He identifies several situations that arise regularly in arbitration that call for ethical considerations. Foremost is ex parte communication with the arbitrator. An ethical breach can be easily avoided by ensuring that a copy of any correspondence sent to the arbitrator is also sent to the opposing advocate. An ethical concern about betraying confidentiality can be addressed, Cohen says, by not revealing off-the-record remarks during the hearing. His point is that even if an advocate scores a point or two, such an unfair move would ultimately poison the relationship between the parties. This can be deleterious if the parties have a continuing relationship.
The author says outright that his book is about being effective, not necessarily winning. “A party’s advocate, whether representing labor or management, cannot control either winning or losing the award,” Cohen writes. “What can be controlled is the effectiveness of that advocate’s presentation.”
The author proceeds to concisely describe what an effective advocate should do during arbitration–from preparation to writing a closing brief. In the preparation phase, Cohen says understanding the contract is crucial. He notes that in the government sector, the law may play a larger role in interpreting a contract, while agency or departmental regulations may be important in defining the parties’ relationship.
There are many practical tips to be found throughout the book. For example, in stating one’s grievance, simplicity is the key. “There is no formal language that need to be used; a grievance is not a court pleading,” says Cohen. In dealing with witnesses during cross-examination, he advises being straightforward. Using the opponent’s witnesses to elicit the proof that an advocate needs may prove to be very risky. “Don’t play games with witnesses,” the author says. “Prove your case by your own witness.”
- From the Dispute Resolution Journal