The ethics of ordering videoconference arbitration over a party’s objection, redux

Some time ago, I explored in this column the problem of what to do when the parties disagree about whether to proceed in person or online. At the time, I was being asked whether an arbitrator can compel a virtual hearing over the objection of a resistant party. As I reported there, the answer is yes (see Christopher David Ruiz Cameron, "The Ethics of Ordering Videoconference Arbitration Over a Party's Objection", Jun. 4, 2021).

The matter of compelling online arbitration is addressed directly and thoughtfully by the National Academy of Arbitrators in Advisory Opinion No. 26, which interprets the NAA's Code of Professional Responsibility. In sum, the NAA's advisory opinion holds that, in the absence of a collective bargaining agreement or other agreement prohibiting such an arrangement, "an arbitrator in exceptional circumstances, without violating the Code, may order that a matter proceed by way of video hearing in whole or in part without mutual consent and over the objection of a party" (National Academy of Arbitrators, Advisory Opinion No. 26.)

The conclusion of the advisory opinion flows from the two fundamental duties of an arbitrator: to "provide a fair and adequate hearing which assures that both parties have sufficient opportunity to present their respective evidence and argument" (NAA, Code of Prof'l Resp. § 5A), and to "endeavor to provide effective service to the parties" (id. § 1C). Of course, the "exceptional circumstances" language noted above means that ordering arbitration by videoconference is not to be taken lightly or issued as a matter of course. This makes sense, because like most arbitrators, I am reluctant to issue an order imposing a format upon which the parties have not mutually agreed.

Now, some two and-a-half years into the Covid-19 pandemic, I am being asked this question:

Q. Are arbitrators actually compelling virtual hearings over the objection of resistant parties?

A. This short answer is yes, but rarely. This is true even though arbitrators overwhelmingly prefer virtual to in-person hearings.

My personal experience has been limited to two cases: one in which I ordered the proceedings to be held online, and another in which I ordered the proceedings to be held in person. (In all other cases, the parties have mutually agreed to the format, and in about three-quarters of these cases, the format agreed to was virtual.)

As to the case that I ordered to proceed online, which involved a termination claim, I was prepared to go forward in person until it was revealed that the party demanding the in-person format, the employer, could not produce its star witness in person. It made no sense to me to present the testimony of the most important witness virtually while the rest of us, including the terminated employee, had to be present physically. Because the key witness would be appearing online, all other witnesses would have to appear online too.

As to the case that I ordered to proceed in person, which involved a contract interpretation grievance, I initially thought that an online hearing would make more sense. After all, each of the lawyers was located in the Eastern time zone, which meant they would have to travel thousands of miles. Besides, the work site was based in Northern California and I was based in Southern California. This was to say nothing of the fact that contract disputes rarely involve the type of credibility determinations that some parties (but not I) firmly believe must be made in person.

The contract in question was a new collective bargaining agreement, and the parties' long-standing tradition, which continued uninterrupted during the pandemic, was to hold meetings in person. In fact, only a few months earlier, they had bargained for the new contract at the same Northern California hotel, in the same conference room, at which the hearing was proposed to take place. It turned out that the only one who objected to going forward in person was the union's lawyer. When asked why, he mentioned his own convenience rather than anybody's safety or security. He said nothing about Covid-related concerns. Under the circumstances, it made sense to proceed in Northern California in person.

Data on the frequency with which virtual hearings are compelled are hard to come by. To get an idea of what is going on, I recently took an informal straw poll among arbitrators affiliated with the Southern California region of the NAA. Only 12 respondents participated, but their responses tended to jibe with my own experience and what I have learned by word of mouth about the practices of other arbitrators.

According to my straw poll, since March 2020, 5 of 12 respondents (42%) reported having heard no cases at all in which the parties had a dispute about proceeding in person or by videoconference; in those cases, a stipulation was reached to go forward online. Among the others, 5 of 12 respondents (42%) reported having heard only one or two cases in which the parties had a dispute about the format, which has been my experience. Just 2 of 12 respondents (17%) reported having heard four or more cases in which the parties had a format dispute.

Moreover, in the disputed-format cases, 7 of 10 respondents (70%) reported having declined to order arbitration by videoconference. Another 2 of 10 respondents (20%) reported having ordered one or two cases to proceed online. Just 1 of 10 respondents (10%) reported having ordered four or more cases to go forward virtually.

Finally, when asked about their format preferences, 10 of 12 respondents (83%) reported favoring arbitration by videoconference over in-person, although of these, 6 respondents overall (50%) reported desiring to accommodate the parties' wishes. Just 2 of 12 respondents (17%) reported favoring arbitration in person, but desiring to accommodate the parties' wishes. Interestingly, none of the respondents (0%) reported favoring arbitration in person only.

Separately, at least three Southern California-based arbitrators who did not participate in the straw poll advised me that they have avoided the problem of being asked to rule on format disputes by adhering to their own standing policy: refusal to hear any cases except by videoconference. (They don't object to everyone else appearing in person, so long as the arbitrator can stay at home and participate online.) These arbitrators advise the parties of their standing policy immediately upon notification of their appointment, and agree to withdraw from the appointment in the rare case in which one or both of the parties insists that the arbitrator participate in person. The common reasons given by these arbitrators for adhering to this standing policy are the same reasons given by other arbitrators for preferring videoconference arbitration in general: age (most labor arbitrators I know are over 70), health conditions (the older we get, the more of them we have to contend with), and convenience (the time, trouble and expense of travel).

In issuing my sole order to proceed virtually, I took into account the following factors:

Applicable contract language, of which there was none.

Law of state and county in which the arbitration would proceed, which this case was non-specific except for requiring mask-wearing indoors.

Past practice, which seemed to favor proceeding in person.

Safety of the participants, including the arbitrator, which favored social distancing and mask-wearing.

Willingness of the participants to proceed under these conditions (they were willing).

Access of participants to proper equipment and facilities.

Impact of delay or proceeding online on access to or availability of evidence and witnesses.

As I have noted in this column before, an arbitrator is appointed to serve the parties and their interests. Whether those interests would be served by in-person or videoconference arbitration should be, and appears to have been, the paramount consideration for most arbitrators since the onset of the Covid-19 pandemic.