By: Mitchell E. Professor of law and Alternative Dispute Resolution, University of Minnesota Law School, with Michelle skipper, vice president, AAA-ICDR commercial arbitration division
Social media plays a crucial role in professional networking and relationships. This raises important questions for arbitrators who must maintain high standards of impartiality and avoid possible conflicts of interest, as well as for lawyers and parties, who have the opportunity to dig deeper into the suitability of potential arbitrators for their cases.
Promote trust, transparency and ethical behavior
Unlike the judicial system, where judges are randomly assigned to cases, the parties to arbitration usually have a role in choosing their “judge” — the arbitrator — by considering the arbitrator’s subject matter experience, case management experience, and impartiality. The first two experiences are relatively easy to determine by researching the biography and publications; but it is difficult to determine the arbitrator’s impartiality towards the subject of the case or the parties involved.
The arbitrators ‘ disclosures regarding conflicts of interest relate to the nature, extent, and duration of any relationship with a party, a party representative, or a witness; whether the relationship is professional, social, or family; and whether this relationship will affect the arbitrator’s ability to act objectively.
What is noteworthy is that although social media has become the leading way of communication, arbitrators are usually not asked about their communications and activities on social media. There are also no specific guidelines or standards on social media disclosures in applicable laws and regulations. According to the Federal Arbitration Act (FAA) and state laws, arbitral awards can be canceled due to general “obvious bias”. The “Commonwealth Coatings” decision, the only decision of the Supreme Court on obvious bias, was issued more than 50 years ago, before the advent of social media.
