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.1
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.” 2
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. 3
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. 4 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, non-argumentative 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 has a First Tier ranking in
Northern Michigan for Mediation by Best Law Firms and a Second Tier ranking in Northern Michigan
for Arbitration by Best Law Firms. He is on the Michigan Super Lawyers list for alternative dispute
resolution.
While serving with the U.S. Army in Vietnam, he was awarded the Bronze Star Medal and Army
Commendation Medals. The unit he was in was awarded the Meritorious Unit Commendation and the
Republic of Vietnam Gallantry Cross Unit Citation with Palm.
He holds his B.A. and J.D. cum laude from the University of Michigan and his LL.M. in Labor Law
from Wayne State University.
____________________________
1 Elkouri & Elkouri, How Arbitration Works (8th ed. 2016), p. 7-30.
2 Abrams, Inside Arbitration: How an Arbitrator Decides Labor and Employment Cases (2013), p. 133.
3 St. Antoine, The Common Law of the Workplace (2005), p. 23.
4 Nolan, Labor and Employment Arbitration (1998), p. 45.
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