At the last Fall Education Conference (FEC) of the National Academy of Arbitrators (NAA)[1], one of the workshops offered was entitled: Video Hearings: A New Option for Your Practice?  The description for the workshop read as follows:

Administrative law forums and some courts have established telephonic and videoconferencing options for conducting hearings. With the need to reduce costs and get to resolution of disputes more efficiently, parties are considering options outside of the traditional hearing forum for labor arbitration. This panel will discuss the viability for conducting full arbitration hearings with the parties and the arbitrator in remote locations. The panel which will include the FMCS will explore opportunities and challenges associated with adopting this as an option to your practice. A “how to” demonstration will be included.

To acquaint participants in the workshop with the topic, Homer C. La Rue (Professor of Law, Arbitrator and Mediator), developed this paper, entitled, A Short Paper on the Existing and Future Use of Videoconferencing in Labor-Management and Employment Arbitration.  The objective of this paper was to provide basic knowledge for the workshop participants about videoconferencing and its current state of use.  The paper does not attempt to offer a critique—good or bad—as to the applicability of videoconferencing for labor-management and employment arbitrators who are members of the Academy and who are governed by the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes (the Code)[2].

The efficacy of the use of videoconferencing was left to the discussion and debate that was expected to take place in the workshop.

The paper first gives a sample of the sectors in which videoconferencing is currently in use.  This includes the Social Security Administration, the Financial Industry Regulatory Authority (FIRA), federal and state courts in civil matters[3], arbitrations and mediations in private commercial disputes, and commercial international disputes.

The discussion goes on to outline some of the advantages and disadvantages that have been noted about the use of videoconferencing in hearings as compared with general meetings or discussions.  The general opinion of users of videoconferences for hearings, not just pre-hearing matters, is that videconferences are cost-effective and provide a range of opportunities for advocates and neutrals to get matters heard fairly and efficiently.

The paper goes on to recount the experience of one neutral, who was interviewed by the author.  That neutral used videoconference in a multi-day labor-management interest arbitration that took place over a number of months.  The neutral’s account is that videoconferencing, with the full cooperation of both parties, permitted the parties to cope with a contingency that no one could have foreseen.  The high-stakes arbitration hearings proceeded to conclusion. Videoconferencing also was used for the executive sessions of the arbitration panel.

The article concludes with two discussions: (1) the personal experiences of the author with the use of videoconference and (2) a discussion of the impact of videoconferencing on the ability of the neutral to make credibility findings during the hearing.  The author recounts some of the cautions that he has learned from his experience in using videoconferencing.  The author’s overall opinion is that videoconferencing is a useful tool in the “tool bag of the neutral”.  Indeed, the author is of the opinion that audio recordings of witness testimony should only be permitted where it is demonstrated that videoconferencing cannot be used.

The discussion of the impact of videoconferencing on making credibility findings concludes with the opinion that there is nothing about the use of videoconferencing that makes making credibility findings any more complicated than such findings would be in an in-person hearing.  The underlying assumption is that the equipment being used for the videoconferencing is of sufficient quality to make audio and visual reliable.  According to the author, based on his personal experience, this requirement excludes “Face-Time” and “Skype”.  It also precludes operating the videoconference from individual laptops as compared to a screen or screens that can be viewed by everyone in common.

The credibility discussion also notes the shortcomings of the use of demeanor evidence to make credibility findings.  The author notes that the body of empirical data is persuasive that such demeanor evidence is unreliable because of the probability of bias based on factors such as culture and witness comfort with testifying.

The final part of the paper suggests that videoconference will grow in use as the technology continues to improve, and advocates and neutrals become more familiar and comfortable with the use of that technology.  The author suggests the establishment of a national task force to develop a statement of best practices and minimum procedures for the conducting of videoconferencing in arbitration.

[1] FEC Conference dates: Sept. 20-22, 2019. Workshop date: September 21, 2019.

[2] Code of Professional Responsibility for Arbitrators of Labor-Management Disputes of the National Academy of Arbitrators, American Arbitration Association, and Federal Mediation and Conciliation Service, as amended and in effect September 2007.

This “Code of Professional Responsibility for Arbitrators of Labor-Management Disputes” supersedes the “Code of Ethics and Procedural Standards for Labor-Management Arbitration,” approved in 1951 by a Committee of the American Arbitration Association, by the National Academy of Arbitrators, and by representatives of the Federal Mediation  and Conciliation Service.

Code at 1.

[3] The paper, intentionally, does not address the use of videoconferencing in criminal matters.