By Lee Hornberger
Introduction
The opening statement is crucial in labor arbitration cases. The opening statement gives advocates the opportunity to successfully put forth their client’s case in the most favorable light to the arbitrator at the very beginning of the arbitration hearing.
An opening statement is a brief and general outline of what the dispute is about and what the advocate intends to prove. Even if the advocate prepares a written opening statement, it should be presented orally.
Furthermore, “[t]he opening statements set the stage for the testimony to come. … They should explain to the arbitrator what each party’s case is about.”
The Opening Statement serves a unique function
In a labor arbitration case, the opening statement is given in a unique adjudicative environment. This environment differs from court litigation or employment arbitration where the parties will have provided information, including pleadings and briefing, to the adjudicator prior to the evidentiary hearing. Presentation of information generally is not provided prior to a labor arbitration. The labor arbitrator will usually know little, if anything, about the case. At best, the arbitrator only will know whether the case is a discipline or a contract interpretation case and will learn the issue moments before the opening statement. This lack of prior knowledge highlights the extreme importance of the opening statement in a labor arbitration case.
An effective opening statement is carefully prepared and practiced ahead of time before it is given to the arbitrator.
Opening statements should be carefully thought out, and not be unduly argumentative, in order to accomplish their purpose to succinctly apprise the arbitrator of the party’s theory of the case and what evidence that party intends to use to prove its case.
In a discipline case, the employer gives its opening statement first. In a contract interpretation case, the union gives its opening statement first. This is based on both tradition as well as which party has the burden of proof. If an advocate plans to ask for a burden of proof other than the preponderance of the evidence in their post-hearing argument, the advocate should consider giving the arbitrator notice of that in the opening statement.
To overcome the hurdle of the arbitrator’s lack of prior knowledge of the facts, the advocate must effectively promote the interests of their client, whether the employer or the union. The advocate should not overpromise and should remember that what is said during the opening statement is not evidence.
The Opening Statement describes the issues
The opening statement tells the arbitrator the issues in the case, including both the substantive and procedural issues. The opening statement must clearly inform the arbitrator of the applicable sections of the pertinent documents, including the collective bargaining agreement (CBA), employment manual, established policies, and other operative documents as well as the page numbers in the documents where those sections can be found. It is extremely important that the arbitrator know exactly where in these documents, including page numbers, the arbitrator can go to better understand the case and the parties’ viewpoints.
The advocate should pay attention to whether the arbitrator is taking notes during the opening statement. The pace with which the opening statement is delivered should be adjusted by paying careful attention to the arbitrator’s speed and depth of note taking. The advocate’s goal is to make the arbitrator’s job easier. Sometimes the pace at which the advocate delivers the opening statement, including pauses, can be helpful. The arbitrator’s hearing notes might ultimately be the record upon which the arbitrator’s memory of the hearing will largely be based.
The Opening Statement outlines the facts
The opening statement should, in a concise, clear fashion, outline the “who, what, where, how, and when” of the case. Once the opening statement is completed, the arbitrator should have a clear understanding of who the main actors are, what happened to give rise to the grievance, where the situation occurred, how the situation unfolded, and the timeline of the situation.
The opening statement should also address unfavorable aspects of the case. The arbitrator should not hear these unfavorable aspects for the first time during the other side’s opening statement. The advocate should use this opportunity to present adverse facts in the best light.
The second opening statement (for example, the union’s opening statement in a discipline case) should usually respond to issues raised in the first opening statement rather than waiting for the evidentiary portion of the hearing. For example, if the employer argues for the first time ever in its opening statement that the grievance or demand for arbitration is untimely, the union should tell the arbitrator, if true, during its opening statement that this issue was never previously raised by the employer. The arbitrator should be told about these procedural issues before the end of the opening statements. By careful planning of the opening statement, including the use of the grievance procedure, the advocate should anticipate the other side’s arguments and effectively respond to them.
The opening statement should be a careful, nonargumentative presentation of the case in a professional and courteous fashion. It will summarize in a convincing manner the advocate’s main arguments, including the facts and precisely what the advocate intends to prove.
The Opening Statement specifies the relief sought
The opening statement should also spell out the relief that the party is seeking. If the arbitrator knows what remedy the party is seeking, it is easier for the arbitrator to understand the evidence as it comes in.
In discipline cases, the union will occasionally refrain from making its opening statement until after the employer offers its evidence and rests. Some believe this approach prevents the arbitrator from having a balanced or full understanding of the case at the start. On the other hand, others believe that the union advocate can better serve the interests of the grievant by not playing the advocate’s hand until after hearing all the employer’s evidence. Deciding to delay one’s opening is an important strategic decision that should not be made lightly. One risk of delaying one’s opening statement is that such delay might give the other side the advantage of the primacy effect. The rule of primacy means that the side heard first will be more persuasive than the side that is heard later. One possible benefit of delaying one’s opening is to hold back on one’s presentation until after the other side has played its cards.
The Opening Statement in a virtual hearing
In a virtual arbitration hearing via Zoom or other platform, the advocate must consider the different methods and characteristics of communication during a virtual arbitration. Depending on the settings of the observer’s monitor, the screen might display the advocate’s face on the entire screen. In addition, there might be a short delay between the advocate’s speaking and when the speaking is heard by the arbitrator. It is important that the advocate speak more slowly.
The advocate should also consider using Share Screen to help emphasize the relevant CBA provisions and other key documents. Share Screen is a tool available on the Zoom platform, which allows the user to share the user’s documents on the monitor to be seen by other participants in the hearing. As with other portions of the opening statement, the advocate should prepare and practice the Share Screen procedure ahead of time. The hearing is not the place to try Share Screen for the first time.
Pre-sharing of exhibits occurs much more frequently in virtual arbitration than in in-person arbitration. By using Share Screen, the arbitrator can see the relevant exhibit and the advocates at the same time. In addition, PowerPoint slides and exhibits can be displayed in the arbitration via Share Screen during the opening statement.
In all arbitrations, cooperation, professionalism, and mutual respect should be paramount. The mantra for virtual arbitrations is “be kind.”
Conclusion
An effective opening statement tells the arbitrator in a concise, courteous, fashion exactly what the facts in the case are, what the issues are, how the advocate wants the arbitrator to rule, and exactly what relief is being requested. In addition, with virtual arbitration, the advocate’s effective use of Share Screen during a Zoom arbitration can create a powerful opening statement.
————————
Introduction
The opening statement is crucial in labor arbitration cases. The opening statement gives advocates the opportunity to successfully put forth their client’s case in the most favorable light to the arbitrator at the very beginning of the arbitration hearing.
An opening statement is a brief and general outline of what the dispute is about and what the advocate intends to prove. Even if the advocate prepares a written opening statement, it should be presented orally.
Furthermore, “[t]he opening statements set the stage for the testimony to come. … They should explain to the arbitrator what each party’s case is about.”
The Opening Statement serves a unique function
In a labor arbitration case, the opening statement is given in a unique adjudicative environment. This environment differs from court litigation or employment arbitration where the parties will have provided information, including pleadings and briefing, to the adjudicator prior to the evidentiary hearing. Presentation of information generally is not provided prior to a labor arbitration. The labor arbitrator will usually know little, if anything, about the case. At best, the arbitrator only will know whether the case is a discipline or a contract interpretation case and will learn the issue moments before the opening statement. This lack of prior knowledge highlights the extreme importance of the opening statement in a labor arbitration case.
An effective opening statement is carefully prepared and practiced ahead of time before it is given to the arbitrator.
Opening statements should be carefully thought out, and not be unduly argumentative, in order to accomplish their purpose to succinctly apprise the arbitrator of the party’s theory of the case and what evidence that party intends to use to prove its case.
In a discipline case, the employer gives its opening statement first. In a contract interpretation case, the union gives its opening statement first. This is based on both tradition as well as which party has the burden of proof. If an advocate plans to ask for a burden of proof other than the preponderance of the evidence in their post-hearing argument, the advocate should consider giving the arbitrator notice of that in the opening statement.
To overcome the hurdle of the arbitrator’s lack of prior knowledge of the facts, the advocate must effectively promote the interests of their client, whether the employer or the union. The advocate should not overpromise and should remember that what is said during the opening statement is not evidence.
The Opening Statement describes the issues
The opening statement tells the arbitrator the issues in the case, including both the substantive and procedural issues. The opening statement must clearly inform the arbitrator of the applicable sections of the pertinent documents, including the collective bargaining agreement (CBA), employment manual, established policies, and other operative documents as well as the page numbers in the documents where those sections can be found. It is extremely important that the arbitrator know exactly where in these documents, including page numbers, the arbitrator can go to better understand the case and the parties’ viewpoints.
The advocate should pay attention to whether the arbitrator is taking notes during the opening statement. The pace with which the opening statement is delivered should be adjusted by paying careful attention to the arbitrator’s speed and depth of note taking. The advocate’s goal is to make the arbitrator’s job easier. Sometimes the pace at which the advocate delivers the opening statement, including pauses, can be helpful. The arbitrator’s hearing notes might ultimately be the record upon which the arbitrator’s memory of the hearing will largely be based.
The Opening Statement outlines the facts
The opening statement should, in a concise, clear fashion, outline the “who, what, where, how, and when” of the case. Once the opening statement is completed, the arbitrator should have a clear understanding of who the main actors are, what happened to give rise to the grievance, where the situation occurred, how the situation unfolded, and the timeline of the situation.
The opening statement should also address unfavorable aspects of the case. The arbitrator should not hear these unfavorable aspects for the first time during the other side’s opening statement. The advocate should use this opportunity to present adverse facts in the best light.
The second opening statement (for example, the union’s opening statement in a discipline case) should usually respond to issues raised in the first opening statement rather than waiting for the evidentiary portion of the hearing. For example, if the employer argues for the first time ever in its opening statement that the grievance or demand for arbitration is untimely, the union should tell the arbitrator, if true, during its opening statement that this issue was never previously raised by the employer. The arbitrator should be told about these procedural issues before the end of the opening statements. By careful planning of the opening statement, including the use of the grievance procedure, the advocate should anticipate the other side’s arguments and effectively respond to them.
The opening statement should be a careful, nonargumentative presentation of the case in a professional and courteous fashion. It will summarize in a convincing manner the advocate’s main arguments, including the facts and precisely what the advocate intends to prove.
The Opening Statement specifies the relief sought
The opening statement should also spell out the relief that the party is seeking. If the arbitrator knows what remedy the party is seeking, it is easier for the arbitrator to understand the evidence as it comes in.
In discipline cases, the union will occasionally refrain from making its opening statement until after the employer offers its evidence and rests. Some believe this approach prevents the arbitrator from having a balanced or full understanding of the case at the start. On the other hand, others believe that the union advocate can better serve the interests of the grievant by not playing the advocate’s hand until after hearing all the employer’s evidence. Deciding to delay one’s opening is an important strategic decision that should not be made lightly. One risk of delaying one’s opening statement is that such delay might give the other side the advantage of the primacy effect. The rule of primacy means that the side heard first will be more persuasive than the side that is heard later. One possible benefit of delaying one’s opening is to hold back on one’s presentation until after the other side has played its cards.
The Opening Statement in a virtual hearing
In a virtual arbitration hearing via Zoom or other platform, the advocate must consider the different methods and characteristics of communication during a virtual arbitration. Depending on the settings of the observer’s monitor, the screen might display the advocate’s face on the entire screen. In addition, there might be a short delay between the advocate’s speaking and when the speaking is heard by the arbitrator. It is important that the advocate speak more slowly.
The advocate should also consider using Share Screen to help emphasize the relevant CBA provisions and other key documents. Share Screen is a tool available on the Zoom platform, which allows the user to share the user’s documents on the monitor to be seen by other participants in the hearing. As with other portions of the opening statement, the advocate should prepare and practice the Share Screen procedure ahead of time. The hearing is not the place to try Share Screen for the first time.
Pre-sharing of exhibits occurs much more frequently in virtual arbitration than in in-person arbitration. By using Share Screen, the arbitrator can see the relevant exhibit and the advocates at the same time. In addition, PowerPoint slides and exhibits can be displayed in the arbitration via Share Screen during the opening statement.
In all arbitrations, cooperation, professionalism, and mutual respect should be paramount. The mantra for virtual arbitrations is “be kind.”
Conclusion
An effective opening statement tells the arbitrator in a concise, courteous, fashion exactly what the facts in the case are, what the issues are, how the advocate wants the arbitrator to rule, and exactly what relief is being requested. In addition, with virtual arbitration, the advocate’s effective use of Share Screen during a Zoom arbitration can create a powerful opening statement.
————————
Lee Hornberger is a member of the Professional Resolution Experts of Michigan LLC (PREMi), an invitation-only group of Michigan’s top mediators, a member of the National Academy of Arbitrators, and a Diplomate Member of National Academy of Distinguished Neutrals. He is a former chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, a former member of the SBM’s Representative Assembly, a former President of the Grand Traverse-Leelanau-Antrim Bar Association, and a former Chair of the Traverse City Human Rights Commission. He is a Fellow of the American Bar Foundation and a Fellow of the SBM Foundation. He has received the Distinguished Service Award from the SBM ADR Section in recognition of significant contributions to the field of dispute resolution. He has received the George Bashara Award from the ADR Section in recognition of exemplary service. He has received the Hero of ADR Awards from the ADR Section. He is the reviewing editor of Chapters 8 and 10, Elkouri & Elkouri, How Arbitration Works (9th ed. 2026). He is a Michigan Lawyers Weekly 2026 Michigan Legal 250 Honoree for Alternative Dispute Resolution. He is in Best Lawyers of America for arbitration and mediation. He is on the Michigan Super Lawyers list for alternative dispute resolution. He earned his B.A. from the University of Michigan and his law degrees from U of M Law School Wayne State University Law School.
