(This short essay was prepared by Stephen Douglas Bonney, an arbitrator and mediator who as many other third-party neutrals is figuring how to adapt to the disruptions brought about by the current pandemic. The National Academy of Arbitrators has engaged actively in this conversation. We welcome readers to share their views by sending us similar commentary.)
Arbitration bears a heavy burden in the nation’s labor policy. According to the Supreme Court in Steelworkers v. Warrior & Gulf Navigation Co., “arbitration is the substitute for industrial strife” and “is part and parcel of the collective bargaining process itself.” In order to shoulder that responsibility, the institution must facilitate the speedy, flexible, and inexpensive resolution of labor disputes. Now, the novel coronavirus pandemic is putting the institution to a severe test.
Traditionally, parties and arbitrators have held in-person hearings in relatively small hotel conference rooms to resolve the labor disputes that make it to arbitration. Some commentators have portrayed labor arbitration as sclerotic when it comes to embracing information technology. For instance, How Arbitration Works, the preeminent treatise on labor arbitration, suggests that “most arbitrators view the use of telephone testimony with skepticism.” But this view of labor arbitrators as neo-Luddites seems inconsistent with actual arbitral practice. Even a cursory review of arbitration awards published in Bloomberg-BNA’s Labor Arbitration Reports would turn up dozens of cases in which arbitrators routinely accepted telephone testimony of witnesses who were located far from the hearing site or who – like doctors or dentists – could not appear in person for business reasons. Moreover, as early as 2003, Arbitrator Louis Imundo, Jr., took the testimony of a key witness through an Internet video connection.
It does appear to be the case, however, that parties and arbitrators have been slow to embrace the widespread use of video technology in labor arbitration. For instance, the National Academy of Arbitrators (NAA) first took a deep dive into the subject of using videoconferencing for labor arbitration hearings at its September 2019 Fall Education Conference in Savanah, Georgia. In this respect, labor arbitration has lagged far behind the available technology and the approach followed by state courts, which started using videoconferencing technology for bail hearings nearly fifty years ago and, over the past twenty-five years, have expanded the use of video technology to nearly every aspect of court business.
Now, in the wake of public health mitigation measures ordered in response to the novel coronavirus pandemic, labor arbitrators have expressed profound interest in holding video hearings. For instance, in March 2020, just days after state and local officials began imposing shelter-in-place orders covering vast segments of the U.S. population, the NAA teamed up with the Federal Mediation & Conciliation Service (FMCS) to hold a webinar to introduce labor arbitrators to videoconferencing technology and to train them on using that technology to conduct on-line hearings. Approximately 500 arbitrators participated in that webinar when it was transmitted live, and many more have viewed the recorded version since then. In addition, more than 150 of the arbitrators listed on the FMCS’s roster have certified that they are competent to host a video arbitration hearing, and the American Arbitration Association (AAA) has sent the members of its Labor Arbitrator Roster materials on AAA’s ability to assist with video hearings. This increased interest in video arbitration hearings may be due to the fact that labor arbitrators tend to be older men and that people over sixty-five and men are at higher risk of serious illness from Covid-19 than are younger people and women. Nearly seventy-five percent of the NAA’s active members are men with an average age over 75.
Although I often wondered why labor arbitration had not embraced video technology, I had never done much to look into it until the pandemic hit. When all of my hearings started to be postponed or cancelled beginning in March 2020, however, I started investigating videoconferencing with a renewed intensity. First, I did a quick internet search to look for videoconferencing platforms and providers. Next, I read the NAA’s primer and FAQ document on video arbitration, and I attended the NAA/FMCS webinar. I also started experimenting with Zoom and WebEx, and I drafted a set of policies and practices describing how I would conduct a video arbitration hearing should any parties opt for one.
As I have received notices of new case selections and started to reconnect with parties to discuss rescheduling postponed hearings, I have consistently asked parties whether they have considered holding video arbitration hearings. Some parties have responded with a terse “no.” Other parties have given a vague explanation of their opposition. For instance, one labor representative responded that the union preferred in-person hearings “due to some past experiences.” Most parties have been willing to entertain the possibility of holding a virtual hearing in theory but have expressed reluctance for a variety of reasons, including concerns about possible hacking, privacy breaches, and being unable to communicate easily with other team members during the hearing.
Although they disclaimed any endorsement of Zoom, the NAA/FMCS used Zoom as the platform for the webinar on video hearings. At the same time, AAA and FINRA have both opted to use Zoom for video arbitrations that their staffs facilitate. After doing my due diligence, I also decided to use Zoom as the platform for any video arbitration hearings that I host. During the pandemic, courts in many states have turned to Zoom to hold video appellate arguments and trial court hearings. Zoom has also been the most popular of the many available videoconferencing platforms that people have turned to for virtual work and social meetings in this time of social distancing. That popularity has invited expert scrutiny and exposed several vulnerabilities in Zoom’s software and privacy policies.
When I asked about holding the hearing by videoconference, one employer rejected “a video hearing due to how easily they can be hacked, especially Zoom.” Zoom’s vulnerability to hacking can be mitigated fairly easily by requiring passwords for attendance, making each participant “sit” in the virtual waiting room until the host opts to admit the participant, and using a variety of other options built into Zoom. In response to reports of “Zoombombing,” Zoom has made several of these options default settings. The more troubling issue with Zoom is the opacity of some of its privacy policies.
After investigating these problems, I decided to stick with Zoom as my main platform for video hearings I host for a couple of reasons. First, AAA and FINRA have selected Zoom as the platform for their arbitration hearings, and many state courts have used Zoom for hearings and oral arguments without incident. Second, Zoom is easy to use and offers some features that are extremely well-suited to virtual hearings, including breakout rooms and private chats. Because of the bad publicity Zoom has garnered, I have also started to explore the possibility of using Cisco’s WebEx system, which has received better reviews for its privacy policies and practices.
Although I have chosen to use Zoom for hearings in which the parties agree that I should host, I would never impose my choice of platform on the parties to an arbitration case. When a party has objected to Zoom, I have asked whether that party would be able to host the hearing using whatever platform it uses for videoconferencing. So far, that approach has caused the objecting party to retreat from its abject opposition to a video hearing, although none of those parties has yet expressly agreed to host a video hearing.
One employer in the health care industry raised additional privacy concerns unrelated to Zoom, specifically objecting to a video hearing based on its obligations to protect the privacy of health information under HIPAA. But another health care employer did not believe a video hearing would compromise privacy even when I specifically raised the issue during a video conference call.
Privacy can be compromised during in-person hearings just as it can be breached during video hearings. It is up to the arbitrator and all the participants to protect private information. If parties take precautions to avoid hacking (such as requiring participants to use passwords to join the hearing and requiring the host to take an affirmative step to admit each participant to the hearing), privacy should be protected at the same reasonable level it is protected during in-person hearings. The best protection for private information is to make sure that the arbitrator and all the participants discuss the issue before and during the hearing so that they can come up with an effective strategy for maintaining privacy.
Perhaps the biggest bug in the videoconferencing arena is the capacity to make audio and video recordings of meetings, which most, if not all, of the available videoconferencing platforms permit. But the host can disable that option in Zoom so that none of the participants can record the hearing. Although the main presenter in the NAA/FMCS webinar suggested that parties be allowed to record hearings, I disagree with that advice on privacy protection grounds. If there is no recording of the hearing, no one can post, transmit, or share a recording that would expose private information. In my video arbitration practices and procedures, I advise the parties that – unless they mutually agree otherwise – I will not permit anyone to record the hearing using the host platform’s software and that my notes will be the official record of the hearing, just as my notes constitute the official record of any in-person hearing I conduct, even where the parties have hired a court reporter to make a transcript of the proceedings.
One advocate worried that holding a video hearing would adversely affect the advocate’s ability to prepare witnesses. I politely suggested that holding a video hearing would have no impact on the advocate’s ability to meet with his witnesses in person if he feels such meetings are essential to his preparing the witnesses to testify. Even in time of pandemic, it is possible to take precautions – such as wearing personal protective equipment and maintaining social distancing – that should make holding an in-person, one-on-one meeting with a witness reasonably safe. More importantly, however, it seems to me that current levels of technology permit advocates to share necessary documents with witnesses and to hold videoconferences that should allow adequate preparation for testimony in almost any case. Although an in-person meeting certainly allows an advocate to make a more intimate human connection with a witness, I can think of few instances in which in-person contact with a witness would be essential to adequate preparation.
Another concern parties have expressed is that, during a video hearing, the advocate’s company or union representative or the grievant could not easily whisper in the advocate’s ear or pass the advocate a note. When I was an advocate, I rarely found such whispers or notes helpful; in fact, I generally viewed them as distracting. Nonetheless, I recognize that clients and grievants like to participate and chime in during hearings. Fortunately, many videoconferencing platforms, including Zoom, allow participants to send each other private chat messages. Even if those chat features are unavailable or inadequate, however, the presiding arbitrator could accommodate this need by taking more frequent breaks to allow the advocates to communicate with members of their teams through email, texts, or phone calls. Zoom’s breakout room feature also allows parties to adjourn to a breakout room for private discussions as if they stepped out of the hearing room during an in-person hearing. This option allows teams to conduct more in-depth discussions of strategy and tactics.
Several parties have expressed the concern that holding a video hearing will adversely affect the ability of the arbitrator and the advocates to observe the demeanor of witnesses and thus judge credibility. This is reputedly why some arbitrators have rejected requests to present testimony by telephone. But, as Judge Mark W. Bennett observed in a 2015 law review article, nearly fifty years of research by cognitive psychologists has gutted “the cultural myths that liars have shifty eyes, grimaces, nervous blinking, furtive glances, or even shifty bodies.” According to Judge Bennett, “demeanor evidence predicts witness truthfulness about as accurately as a coin flip.” Since the scientific evidence suggests that assessments of demeanor are of little benefit, sacrificing in person observations of witnesses seems unlikely to compromise or inhibit arbitral judgment and decision-making. Rather than rely on inherently shaky demeanor observations, arbitrators and advocates should base credibility judgments on evaluations of each witness’s opportunity to observe, motives for testifying, interest in a specific result, and prior consistent or inconsistent statements on the same subject. In addition, credibility should be judged on the reasonableness of the witness’s story and whether the witness’s testimony is consistent with other documentary evidence and testimony introduced during the hearing.
When the arbitrator shows up for the traditional in-person hearing, he or she knows very little about the case, has only a general idea about the issue involved, and has usually seen none of the exhibits that will be introduced. Holding a successful video hearing will require parties and arbitrators to spend more time preparing for the hearing. For instance, some time before the hearing, the arbitrator should hold a practice session with the parties and witnesses in order to identify and iron out any technical problems that may arise. In addition, the parties will need to identify and transmit as many exhibits as possible to the arbitrator before the hearing. Asking the arbitrator to look through often unpaginated exhibits is a common cause of arbitral ire during in-person hearings. Having the exhibits in a paginated and tabbed electronic format should make it easier for everyone involved in the hearing to access those exhibits during testimony. If the parties can flag specific parts of the exhibits that are critical to the issue at hand, that will also make the hearing go more smoothly.
Finally, because witnesses will often be testifying from a remote location outside the presence of the arbitrator and at least one of the advocates, arbitrators will need to advise witnesses that they should turn off all electronic devices while testifying. Doing so will avoid distractions and will reduce any temptation the witness may have to seek advice or information from the Internet while testifying. Arbitrators should also advise the advocates not to communicate with or coach the witness during testimony.
The novel coronavirus pandemic has disrupted every aspect of people’s social and work lives, and – without a vaccine or an effective pharmaceutical treatment – the only reliable mitigation measures available will require social distancing and limits on the size of gatherings. In these circumstances, traditional in-person hearings involve some level of risk of infection to the participants. Video hearings offer a viable alternative to in-person arbitration hearings. Parties may hesitate to embrace video technology at this time, but they will likely become more comfortable with the idea as the pandemic continues. Although video hearings will require more preparation on the front end, labor arbitrators and parties can adjust and prepare so that the resolution of labor disputes can continue more efficiently and cost effectively than ever before through the responsible use of video technology.